Remote Court - Principles For Virtual Proceedings During The COVID

Copyright 2021 by Alicia L. Bannon & Douglas Keith Printed in U.S.A.
Vol. 115, No. 6
Essay
REMOTE COURT: PRINCIPLES FOR VIRTUAL
PROCEEDINGS DURING THE COVID-19
PANDEMIC AND BEYOND
Alicia L. Bannon & Douglas Keith
ABSTRACT—Across the country, courts at every level have relied on remote

technology to adapt the justice system to a once-a-century global pandemic.
This Essay describes and assesses this unprecedented journey into virtual
justice, paying particular attention to eviction proceedings. While many
judges have touted remote court as a revolutionary innovation, the reality is
more complex. Remote court has brought substantial time savings and
convenience to those who are able to access and use the required technology,
but it has also posed hurdles to individuals on the other side of the digital
divide, particularly self-represented litigants. The remote court experience
has varied substantially depending on the nature of the proceedings, the rules
and procedures courts put in place, and the relevant court users’ resources
and tech savvy. Critically, the challenges posed by remote court have often
been less visible to judges than the efficiency benefits. Drawing on these
lessons, this Essay identifies a series of principles that should inform future
uses of remote technology. Ultimately, new technology should be embraced
when—and only when—it is consistent with fair proceedings and access to
justice for all.
AUTHORS—Alicia L. Bannon is the managing director of the Democracy

Program at the Brennan Center for Justice at New York University School
of Law, where she directs its fair courts project. Douglas Keith is counsel in
the Brennan Center’s fair courts project. We are grateful to John Pollock for
helpful feedback on this Essay. Thank you to Janna Adelstein for her
extensive research studying pandemic-era court orders, policies, and
practices, and to Emily True, Spencer LaFata, and Clio Morrison for their
research related to COVID-19 commissions. Thanks also to the editors of the
Northwestern University Law Review, including Adam Sopko, Emily Ross,
Greg Devaney, Jamie Hwang, Madeline Yzurdiaga, Ryan Kearney, William
Edwards, Kimberly Railey, Elizabeth Jeffers, HanByul Chang, Oren Kriegel,
Taylor Hoffman, Connor Cohen, Summer Zofrea, Cliff Goldkind, and Sarah
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Chanski for their excellent editing and cite checking. We owe special thanks
to the legal-services providers and advocates who took time away from
representing low-income tenants to speak with us about their experiences.
INTRODUCTION .......................................................................................................... 1876

I. COURTS’ ADOPTION OF REMOTE PROCEEDINGS IN RESPONSE TO THE
COVID-19 PANDEMIC ....................................................................................... 1880
II. THE PANDEMIC EXPERIENCE SHOWS REMOTE COURT’S SHORTCOMINGS AND
POTENTIAL ........................................................................................................ 1886
A. Convenience for Many, Exclusion for Some ............................................. 1887
B. A Day in Court Without a Courtroom ....................................................... 1893
C. Special Challenges for Self-Represented Litigants ................................... 1897
D. Differing Forms of Public Access ............................................................. 1899
E. Inconsistent Implementation ..................................................................... 1901
III. CONSTITUTIONAL ISSUES RAISED BY REMOTE COURT ........................................ 1902
IV. INSTITUTIONAL BLIND SPOTS AND LESSONS FOR THE COURTS ............................ 1909
V. PRINCIPLES FOR MOVING FORWARD................................................................... 1912
A. Engage a Diverse Array of Justice-System Stakeholders .......................... 1913
B. Tailor Plans to the Type of Proceeding .................................................... 1913
C. Bolster the Attorney–Client Relationship.................................................. 1914
D. Provide Extra Support for Self-Represented Litigants .............................. 1915
E. Provide Technical Support and Adopt Technology Standards to Ensure
Quality ...................................................................................................... 1916
F. Appreciate the Persistent Digital Divide and Ensure Meaningful
Participation by Marginalized Populations .............................................. 1917
G. Seek the Consent of Parties Before Proceeding Remotely ........................ 1918
H. Study Remote Proceedings to Better Understand Their Impact ................ 1918
I. Embrace the Benefits of Remote Proceedings........................................... 1919
CONCLUSION ............................................................................................................. 1920
INTRODUCTION
Shortly before Justice of the Peace Nicholas Chu was set to hear
opening arguments in the first fully virtual criminal trial in the United States,
Judge Chu had to excuse Juror #5 for a reason familiar to anyone grappling
with remote life during the COVID-19 pandemic—spotty Wi-Fi. 1 After
1 Travis County, JP5 Jury Trial Justice of the Peace, Pct. 5, YOUTUBE, at 11:50:00–13:10:00 (Aug.
11, 2020), https://www.youtube.com/watch?v=FEwnM615Xh8 (last visited Mar. 7, 2021).
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seating an alternate juror for this misdemeanor trial in Travis County, Texas,
which was conducted over the Zoom videoconference system, Judge Chu
reminded the jurors to give their full attention and not be “on Facebook or
checking email.”2 The jurors heard from witnesses, viewed documents and
videos (also made available to jurors in an e-folder),3 and deliberated in a
Zoom breakout room for approximately twenty minutes, after which the
foreperson delivered the jury’s verdict: the defendant was guilty of speeding.
Each juror gave a muted thumbs-up to indicate the verdict was unanimous.4
Across the country, courts at every level have relied on remote
technology to adapt the justice system to a once-a-century global pandemic,
which shuttered courthouse doors beginning in March 2020 and has required
limits on in-person proceedings for over a year. In June 2020, Bridget Mary
McCormack, chief justice of the Michigan Supreme Court, told a
congressional subcommittee that “in three months, [the courts] have changed
more than in the past three decades.” 5 Nathan Hecht, chief justice of the
Supreme Court of Texas, has suggested that with the expansion of remote
court proceedings, “the American justice system will never be the same.”6
In this Essay, we seek to describe and assess courts’ unprecedented
journey into virtual justice, with a focus on trial-level courts. What has
worked well, and what have been the challenges? What shortcomings must
be resolved if, as seems likely, courts are going to continue using remote
proceedings more frequently than they had prior to the pandemic? What
institutional blind spots might be holding courts back from fully addressing
those challenges? To answer these questions, this Essay builds on two reports
we published at the Brennan Center for Justice in 2020 and incorporates new
insights gleaned from interviews with legal-services attorneys grappling
with these issues on a daily basis.7
2 David Lee, Texas Judge Holds First Virtual Jury Trial in Criminal Case, COURTHOUSE NEWS
SERV. (Aug. 11, 2020), https://www.courthousenews.com/texas-judge-holds-first-virtual-jury-trial-in-
criminal-case/ [https://perma.cc/XJ9R-H3KG].
3 Travis County, supra note 1, at 1:55:00.
4 Id. at 3:16:00–3:16:15.
5 Federal Courts During the Covid-19 Pandemic: Best Practices, Opportunities for Innovation, and
Lessons for the Future: Hearing Before the Subcomm. on Cts., Intell. Prop., & the Internet of the H.
Comm. on the Judiciary, 116th Cong. 1 (2020) (testimony of Bridget M. McCormack, chief justice,
Michigan Supreme Court) [hereinafter McCormack Testimony].
6 Meera Gajjar, “The American Justice System Will Never Be the Same,” Says Texas Supreme Court
Chief Justice Nathan Hecht, THOMSON REUTERS (Apr. 24, 2020), https://www.thomsonreuters.com/en-
us/posts/government/texas-supreme-court-chief-justice-nathan-hecht/ [https://perma.cc/69JS-AG79]
(interviewing Nathan Hecht, chief justice, Supreme Court of Texas).
7 See ALICIA BANNON & JANNA ADELSTEIN, BRENNAN CTR. FOR JUST., THE IMPACT OF VIDEO
PROCEEDINGS ON FAIRNESS AND ACCESS TO JUSTICE IN COURT (2020), https://www.brennancenter.
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In Part I, we describe how courts have expanded the use of remote

proceedings during the COVID-19 pandemic. In Part II, we draw on diverse
sources—including interviews with civil legal-aid providers, media reports,
surveys conducted during the pandemic, accounts from judges and others
within the judicial system, and pre-pandemic scholarship—to detail some of
the benefits and shortcomings of remote proceedings that have become
apparent. In Part III, we look at some of the constitutional questions raised
by remote court. In Part IV, we discuss potential institutional blind spots in
courts’ responses to the pandemic that may have colored their view of remote
proceedings. Finally, in Part V, we lay out a series of principles that we
suggest should guide future policymaking.
At several points throughout this Essay we highlight eviction
proceedings, which sit at the nexus of the public-health and economic crises
flowing from the pandemic. Eviction proceedings are a useful lens for
understanding the practical implications of remote proceedings on access to
justice: they are high stakes, yet tenants enjoy fewer constitutional
protections than do criminal defendants and are frequently unrepresented by
counsel. Insights from the civil justice system are also important because
much of the conversation about remote technology to date has focused on
the criminal courts.
Despite a patchwork of state and federal eviction moratoria, courts have
authorized hundreds of thousands of evictions during the pandemic. 8 A
org/sites/default/files/2020-09/The%20Impact%20of%20Video%20Proceedings%20on%20Fairness%
20and%20Access%20to%20Justice%20in%20Court.pdf [https://perma.cc/C4TH-S72N]; DOUGLAS
KEITH & ALICIA BANNON, BRENNAN CTR. FOR JUST., PRINCIPLES FOR CONTINUED USE OF REMOTE
COURT PROCEEDINGS (2020), https://www.brennancenter.org/sites/default/files/2020-09/Principles%20
for%20Continued%20Use%20of%20Remote%20Court%20Proceedings%20final_0.pdf [https://perma.
cc/69WY-6XHD].
8 As of April 11, 2021, http://www.evictionlab.org/eviction-tracking/ reported 291,368 evictions in
just the five states and twenty-seven cities it tracks. The Eviction Tracking System, EVICTION LAB,
http://www.evictionlab.org/eviction-tracking/ [https://perma.cc/S8GS-K4MN]. For state policies, see
COVID-19 Housing Policy Scorecard, EVICTION LAB, https://evictionlab.org/covid-policy-scorecard/
[https://perma.cc/GGZ6-J56T]. At the federal level, in addition to a short-lived moratorium in the CARES
Act, in September, the Centers for Disease Control and Prevention (CDC) ordered a halt on evictions and
foreclosures due to nonpayment through January 31, 2021, which has since been extended to June 30,
2021. CARES Act, Pub. L. No. 116-136, § 4024, 134 Stat. 281, 492 (2020); Temporary Halt in
Residential Evictions to Prevent the Further Spread of COVID–19, 85 Fed. Reg. 55292 (Sept. 4, 2020);
Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID–19, 86 Fed. Reg. 8020
(Feb. 3, 2021); Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID–19, 86
Fed. Reg. 16731 (Mar. 31, 2021). To take advantage, tenants and residents only have to submit a two-
page declaration confirming that they met the CDC’s requirements, such as qualifying annual income and
substantial loss of income or increased medical expenses. See Declaration Under Penalty of Perjury for
the Centers for Disease Control and Prevention’s Temporary Halt in Evictions to Prevent Further Spread
of COVID-19, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/coronavirus/2019-
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recent study found that lifting eviction moratoria contributed to increased

COVID-19 incidence and mortality rates, likely due to transience, increased
crowding in homes and shelters, and reduced access to health care.9 As the
pandemic drags on and moratoria expire, an estimated 8.8 million renters are
behind on their rental payments, placing them at risk of eviction.10 Among
renters with annual incomes below $25,000, more than one in four reported
that they were behind on their rent. 11 Throughout this Essay, we include
examples of how remote proceedings have been used in the eviction context,
drawing on surveys, court cases, and interviews with legal-services providers
and tenant advocates in five states: Florida, Michigan, Missouri, Ohio, and
Texas.12
Remote court has brought benefits to many court users, most notably in
time savings and convenience for those who are able to access and use the
required technology. Yet remote court has also posed real challenges,
including to the attorney–client relationship and to the ability of self-
represented litigants to access resources and fully participate in court
proceedings. It has worked better in some kinds of proceedings than others.
And it has raised difficult questions about whether key functions—such as
credibility assessments—can be fulfilled virtually.
Importantly, many of the disadvantages of remote proceedings are
likely to be less visible to judges and other court officials than the efficiency
benefits many have described as revelatory. And remote court’s long-term
desirability is likely highly dependent on the nature of the proceedings at
ncov/downloads/declaration-form.pdf [https://perma.cc/A4DR-9ZZT]. But some states have not

interpreted the CDC’s moratorium strictly. See, e.g., Email from Nicole N. Brinkley, Assistant Couns.,
N.C. Admin. Off. of the Cts. Off. of Gen. Couns., to Clerks, Assistant Clerks, & Deputy Clerks of
Superior Ct., N.C. Jud. Branch, & Other Ct. Offs. (Sept. 9, 2020, 5:12 PM) (on file with journal)
(instructing clerks throughout North Carolina that the CDC order changed nothing about the clerks’
process for filing and scheduling eviction proceedings and issuing writs of possession, the final eviction
order in the state); Annie Nova, The CDC Banned Evictions. Tens of Thousands Have Still Occurred,
CNBC (Dec. 5, 2020), https://www.cnbc.com/2020/12/05/why-home-evictions-are-still-happening-
despite-cdc-ban.html [https://perma.cc/N4AN-8KWJ] (reporting that seven states never stopped
evictions despite the CDC moratorium).
9 Emily A. Benfer, David Vlahov, Marissa Y. Long, Evan Walker-Wells, J. L. Pottenger Jr., Gregg
Gonsalves & Danya E. Keene, Eviction, Health Inequity, and the Spread of COVID-19: Housing Policy
as a Primary Pandemic Mitigation Strategy, 98 J. URB. PUB. HEALTH 1, 7 (2021) (finding that lifting
eviction moratoria was associated with 2.1 times higher incidence and 5.4 times higher mortality after
sixteen weeks, leading to more than 10,000 excess deaths).
10 CONSUMER FIN. PROT. BUREAU, HOUSING INSECURITY AND THE COVID-19 PANDEMIC 6 (2021),
https://files.consumerfinance.gov/f/documents/cfpb_Housing_insecurity_and_the_COVID-19_pandemi
c.pdf [https://perma.cc/PA6E-JYE2] (providing estimates as of December 2020).
11 Id.
12 To protect confidentiality and encourage frank feedback about the judiciary’s performance, all
interviews cited in this Essay are referenced by state and organization type.
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issue. All of these considerations underscore the importance of broad

consultation with stakeholders both inside and outside the judicial system in
setting court policies. Yet on this measure, there are concerning indications
that courts in many jurisdictions have been falling short.
The COVID-19 pandemic has forced innovation, but the next step is to
make sure we take the right lessons from the experience, so that technology
is embraced when—and only when—it is consistent with fair proceedings
and access to justice for all.
I. COURTS’ ADOPTION OF REMOTE PROCEEDINGS IN RESPONSE TO THE

COVID-19 PANDEMIC
When state and federal officials began responding to the COVID-19
crisis in March 2020 by mandating social-distancing measures, court
systems acted swiftly.13 In many state and federal jurisdictions, early court
orders expressed at least a preference for using remote technology when
possible. For example, on March 13, the Florida Supreme Court suspended
all court rules limiting or prohibiting the use of remote proceedings, while
noting that defendants’ confrontation clause rights must still be met in
criminal cases.14 On the same day, the Supreme Court of Texas authorized
the state’s courts to “[a]llow or require anyone involved in any hearing . . .
to participate remotely, such as by teleconferencing, videoconferencing, or
other means.”15
By April 2020, every state judicial branch, and many local court
systems, had issued an order or guidance seeking to reduce the number of
people entering courthouses. 16 While some jurisdictions were more
aggressive than others in their initial responses, in a matter of weeks court
systems had largely coalesced around a similar set of measures for trial
courts: suspension of jury trials and in-person proceedings save for
categories of cases the jurisdiction deemed essential.
13 Janna Adelstein & Douglas Keith, Initial Court Responses to Covid-19 Leave a Patchwork of
Policies, BRENNAN CTR. FOR JUST. (Apr. 14, 2020), https://www.brennancenter.org/our-work/analysis-

opinion/initial-court-responses-covid-19-leave-patchwork-policies [https://perma.cc/FMV9-A7PG].
14 Administrative Order at 3–4, In re COVID-19 Emergency Procs. in the Fla. State Cts., No.
AOSC20-13 (Fla. Mar. 13, 2020), https://www.floridasupremecourt.org/content/download/631744/file/

AOSC20-13.pdf [https://perma.cc/AY6P-JP23] (discussing COVID-19 emergency procedures in the
Florida state courts).
15 First Emergency Order Regarding the COVID-19 State of Disaster at 1, Misc. Docket No. 20-9042
(Tex. Mar. 13, 2020), https://www.txcourts.gov/media/1446056/209042.pdf [https://perma.cc/C475-

NE3V].
16 Adelstein & Keith, supra note 13.
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At the same time, as weeks passed and court leaders recognized the
enduring nature of the crisis, court systems increasingly turned to remote
technologies to reopen and expand their dockets. Since March 2020, at least
thirty-eight states have issued statewide orders during the pandemic either
mandating or urging the use of remote proceedings, and in the remaining
states many local jurisdictions have adopted similar orders.17 In May 2020,
for example, Connecticut’s judicial branch announced that it would resume
its suspended civil docket by video and telephone.18 The CARES Act federal
stimulus package likewise authorized the use of video and phone for key
aspects of federal criminal proceedings, including arraignments, preliminary
hearings, initial appearances, detention hearings, probation hearings, and
more.19 Congress allocated $6 million to the federal judiciary to adapt to the
new environment. 20 While many jurisdictions subsequently took steps to
reopen or expand in-person operations in a limited capacity during the
pandemic,21 reopening plans have waxed and waned with the prevalence of
the virus. In November 2020, for example, approximately one-quarter of
17 Courts’ Responses to the Covid-19 Crisis, BRENNAN CTR. FOR JUST. (Sept. 10, 2020), https://
www.brennancenter.org/our-work/research-reports/courts-responses-covid-19-crisis [https://perma.cc/
CHS4-ZNFM].
18 See Judicial Branch Continues to Expand Types of Cases Handled Remotely, STATE OF CONN.
JUD. BRANCH (May 7, 2020), https://jud.ct.gov/HomePDFs/RemotelyHandledCases.pdf

[https://perma.cc/3UD6-BH25].
19 CARES Act, Pub. L. No. 116-136, § 15002(b), 134 Stat. 281, 528 (2020).
20 Id. § 15001. Some states also allocated funds to support technology updates—the Supreme Court
of Ohio gave $6 million to local courts for this purpose. See Anne Yeager, Chief Justice’s Program Funds
$6 Million in Technology Grants for Local Courts, CT. NEWS OHIO (May 1, 2020), http://
www.courtnewsohio.gov/happening/2020/remoteTechGrants_050120.asp#.YAdgDuhKg2w [https://
perma.cc/74S2-HKCN].
21 For example, as COVID-19 rates decreased in many places over the summer and early fall in 2020,
judicial systems in many states reopened some physical aspects of courthouses, albeit with measures in
place to meet public-health guidance. See, e.g., Administrative Order Related to Appellate & District
Courts Operations at 3, No. 2020-PR-054 (Kan. May 27, 2020), https://www.kscourts.org/KSCourts/
media/KsCourts/Orders/2020-PR-054.pdf [https://perma.cc/W4KJ-9ACV] (requiring, among other
measures, remote hearings when possible and social distancing). Courts that resumed in-person trials
employed a range of techniques, from scattering jurors around the courtroom, to requiring witnesses wear
masks while testifying, to providing attorneys with walkie-talkies so that they could sidebar with the
judge without having to physically approach the bench. Michael Gordon, Place Your Hand on the Bible:
Federal Jury Trials Resume After Weeks of COVID Planning, CHARLOTTE OBSERVER (June 13, 2020),
https://www.charlotteobserver.com/news/coronavirus/article243514632.html [https://perma.cc/4XF3-
VW7B]; Nicole Hong & Jan Ransom, Only 9 Trials in 9 Months: Virus Wreaks Havoc on N.Y.C. Courts,
N.Y. TIMES (Dec. 2, 2020), https://www.nytimes.com/2020/12/02/nyregion/courts-covid.html [https://
perma.cc/3NER-CKNE].
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federal district courts ordered reduced operations in response to worsening

health indicators.22
Courts’ pivot to remote court was unprecedented in its scope and scale,
but the use of video and phone to hold remote proceedings has been part of
the legal landscape for decades, most often in cases involving incarcerated
or detained individuals.23 In criminal cases, for example, most jurisdictions
have permitted the use of remote videoconferencing for initial appearances
and felony arraignments, with some jurisdictions requiring the defendant’s
consent. 24 Some jurisdictions have further permitted the use of video for
other criminal proceedings, such as pretrial release hearings (typically
requiring consent). 25 In immigration court, videoconferencing (without
consent) is authorized by statute for removal proceedings26 and has been used
regularly since the 1990s.27 During the last quarter of 2019, one out of every
six final hearings that concluded an immigrant’s case was held by video.28 In
state court, videoconferences were widely used for certain criminal and civil
proceedings prior to the pandemic, including criminal arraignments and first
appearances, as well as child-support enforcement.29
22 Courts Suspending Jury Trials as COVID-19 Cases Surge, U.S. CTS. (Nov. 20, 2020),
https://www.uscourts.gov/news/2020/11/20/courts-suspending-jury-trials-covid-19-cases-surge [https://
perma.cc/4R4L-K4HP].
23 See, e.g., MIKE L. BRIDENBACK, STATE JUST. INST., STUDY OF STATE TRIAL COURTS USE OF
REMOTE TECHNOLOGY 12–15 (2016), http://napco4courtleaders.org/wp-

content/uploads/2016/08/Emerging-Court-Technologies-9-27-Bridenback.pdf [https://perma.cc/9A8V-
8ZH5]; Shari Seidman Diamond, Locke E. Bowman, Manyee Wong & Matthew M. Patton, Efficiency
and Cost: The Impact of Videoconferenced Hearings on Bail Decisions, 100 J. CRIM. L. & CRIMINOLOGY
869, 877–78 (2010); Ingrid V. Eagly, Remote Adjudication in Immigration, 109 NW. U. L. REV. 933, 934
(2015).
24 See Jenia I. Turner, Remote Criminal Justice, 53 TEX. TECH L. REV. (forthcoming 2021)
(manuscript at 6), https://papers.ssrn.com/a=3699045 [https://perma.cc/TP3Z-FWRC].

Videoconferencing had been widely used for these proceedings. See BRIDENBACK, supra note 23, at 13–
14. With respect to consent, Arizona, for example, does not require consent for videoconferencing for a
defendant’s initial appearances, misdemeanor arraignments, and not-guilty felony arraignments. ARIZ. R.
CRIM. P. 1.5(c)(1). By contrast, the Federal Rules of Criminal Procedure permit video teleconferencing
for a defendant’s initial appearance or arraignment only with consent. FED. R. CRIM. P. 5(f), 10(c).
25 Turner, supra note 24, at 6.
26 See 8 U.S.C. § 1229a(b)(2)(A)(iii); see also 8 C.F.R. § 1003.25(c) (“An Immigration Judge may
conduct hearings through video conference to the same extent as he or she may conduct hearings in
person.”).
27 Video Hearings in Immigration Court FOIA, AM. IMMIGR. COUNCIL,
https://www.americanimmigrationcouncil.org/content/video-hearings-immigration-court-foia [https://
perma.cc/3H9Q-MNFD].
28 Use of Video in Place of In-Person Immigration Court Hearings, TRAC IMMIGR. (Jan. 28, 2020),
https://trac.syr.edu/immigration/reports/593/ [https://perma.cc/9B7L-MKN7].
29 BRIDENBACK, supra note 23, at 12–15.
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But the COVID-19 pandemic prompted courts to turn to remote

proceedings to an unprecedented degree30: expanding the use of video and
phone in proceedings for which they were already authorized; 31 allowing
remote proceedings in matters that previously had been required to be in
person; 32 and, in some jurisdictions, removing requirements that parties
consent prior to the use of remote proceedings.33 Similarly unprecedented
was that courtrooms themselves were often entirely empty, particularly in
the early months of the pandemic, with judges, staff, lawyers, litigants,
witnesses, and the public all appearing via video or phone.
During the pandemic, many jurisdictions have used remote proceedings
extensively for bail, plea, and sentencing hearings,34 as well as for eviction
proceedings 35 and family court. 36 Though virtual criminal jury trials have
been unusual, Texas saw its first online misdemeanor jury trial in August
2020, 37 and one Texas city began holding regular virtual trials in its
30 See the “Virtual Hearings” map at Coronavirus and the Courts, NAT’L CTR. FOR STATE CTS.,
https://www.ncsc.org/newsroom/public-health-emergency [https://perma.cc/4KUR-N89Z] (click the
“NEW — Virtual Hearing Resources and Guides” tab on the interactive map).
31 Gould Elecs. Inc. v. Livingston Cnty. Rd. Comm’n, 470 F. Supp. 3d 735, 738 (E.D. Mich. 2020)
(authorizing remote bench trial pursuant to Federal Rules of Civil Procedure 77(b) and 43(a)).
32 See, e.g., CARES Act, Pub. L. No. 116-136, § 15002, 134 Stat. 281, 527–29 (2020) (authorizing
courts to conduct remote hearings in a variety of criminal proceedings).

33 See, e.g., Eighteenth Emergency Order Regarding the COVID-19 State of Disaster at 1–2, No. 20-
9080 (Tex. June 29, 2020), https://www.txcourts.gov/media/1448109/209080.pdf [https://perma.cc/

JTB9-V4SL] (authorizing, “[s]ubject only to constitutional limitations” and without consent, all Texas
courts to “allow or require anyone involved in any hearing, deposition, or other proceeding of any kind—
including but not limited to a party, attorney, witness, court reporter, grand juror, or petit juror—to
participate remotely, such as by teleconferencing, videoconferencing, or other means”).
34 Turner, supra note 24, at 36; see also OHIO CRIM. SENT’G COMM’N, COVID-19 AND THE COURTS
2020: A SURVEY OF OHIO JUDGES, COURT ADMINISTRATORS AND ATTORNEYS 46–48 (2020),
http://www.sc.ohio.gov/coronavirus/resources/CSC-COVIDReport.pdf [https://perma.cc/QBQ3-RZ8R]
(surveying courts about the pandemic’s impact on plea, bond, and sentencing hearings in criminal cases).
35 See, e.g., Admin. Order 2020-1, In re Procs. for Landlord/Tenant Matters (Del. J.P. Ct. Sept. 11,
2020), https://courts.delaware.gov/rules/pdf/Justice-of-the-Peace-Court-Administrative-Order-2020-
1.pdf [https://perma.cc/SK6R-JF9R] (instructing that all landlord–tenant matters “will be set for a virtual
pretrial conference and then a subsequent virtual trial,” and noting that “[w]hile in-person hearings are
available where there are technological barriers or complications determined on a case-by-case basis, the
default position will be for a virtual hearing”); see also Chris Arnold, Zoom Call Eviction Hearings:
‘They’ll Throw Everything I Have out on the Street,’ NPR (June 19, 2020), https://www.npr.org/2020/06/
19/880859109/zoom-call-eviction-hearings-they-ll-throw-everything-i-have-out-on-the-street [https://
perma.cc/L4LP-JMXP] (reporting on virtual eviction proceedings, including one in which a judge
“granted landlords the right to evict five people who didn’t or couldn’t dial into the hearing”).
36
See Allie Reed & Madison Alder, Virtual Hearings Put Children, Abuse Victims at Ease in Court,
BLOOMBERG L. (June 23, 2020) [hereinafter Reed & Adler, Virtual Hearings],
https://news.bloomberglaw.com/us-law-week/virtual-hearings-put-children-abuse-victims-at-ease-in-
court [https://perma.cc/2ZUY-LHP2].
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misdemeanor court in November 2020, 38 which are livestreamed from its

YouTube page (and subsequently deleted).39 In February 2021, the Florida
Supreme Court authorized remote criminal jury trials for felonies and
misdemeanors with the defendant’s consent.40 Remote criminal bench trials
have been more widely used, as have remote civil trials.41 Some jurisdictions
have convened remote grand juries. 42 Courts have also turned to hybrid
proceedings, for example, providing for public access via video feed or
phone, 43 relaxing requirements so as to allow witnesses to appear via
videoconference,44 and allowing remote jury selection.45
For an institution where change is often incremental and technology use
has often lagged behind other industries, courts’ embrace of technology
during the pandemic has been remarkable. In Michigan, for example, courts
conducted more than 50,000 hearings on Zoom over the course of nearly
350,000 hours between April and the end of June in 2020. 46 Texas held
38 Anna Caplan, McKinney Is First City in Texas to Hold Virtual Jury Trials During COVID-19,
DALL. MORNING NEWS (Nov. 24, 2020), https://www.dallasnews.com/news/2020/11/24/mckinney-is-

first-city-in-texas-to-hold-virtual-jury-trials-during-covid-19/ [https://perma.cc/4Z73-FGNB].
39 Id.; see City of Mckinney Municipal Court, YOUTUBE, https://www.youtube.com/channel/
UCHaA5x5U5jhMNRU5bqHOjsg [https://perma.cc/F5UQ-Z4YF].
40 Administrative Order at 3, In re Comprehensive COVID-19 Emergency Measures for Fla. Trial
Cts., No. AOSC20-23 (Fla. Feb. 17, 2021), https://www.floridasupremecourt.org/content/

download/719444/file/AOSC20-23-Amendment-9.pdf [https://perma.cc/H7PA-8SNF].
41 See Zack Needles, Trendspotter: Virtual Civil Jury Trials Are Definitely Divisive—And Likely
Inevitable, LAW.COM (Sept. 13, 2020), https://www.law.com/2020/09/13/law-com-trendspotter-virtual-

jury-trials-remain-divisive-but-are-they-inevitable/ [https://perma.cc/BHK6-7MLS]; Five Trial-Court
Circuits Chosen for “Virtual” Civil Jury Trial Pilot Program Due to Pandemic, FLA. SUP. CT. (June 3,
2020, 12:33 PM), https://www.floridasupremecourt.org/News-Media/Court-News/Five-trial-court-
circuits-chosen-for-virtual-civil-jury-trial-pilot-program-due-to-pandemic [https://perma.cc/5MCR-
PERA].
42 Marcus W. Reinkensmeyer , Virtual Grand Jury Hearings: Response to the COVID-19 Emergency
in Mohave County, Arizona, AM. BAR ASS’N (June 29, 2020), https://www.americanbar.org/groups/
judicial/publications/judicial_division_record_home/2020/vol23-4/technology/ [https://perma.cc/4P9M-
FS5J] (Arizona); Charles Toutant, Is the Virtual Grand Jury Process Unconstitutional? Judge Weighs
Challenge, LAW.COM (Dec. 23, 2020), https://www.law.com/njlawjournal/2020/12/23/is-the-virtual-
grand-jury-process-unconstitutional-judge-weighs-challenge/ [https://perma.cc/6AFE-L7TK] (New
Jersey).
43 United States v. Richards, No. 2:19-cr-353-RAH, 2020 WL 5219537, at *1 (M.D. Ala. Sept. 1,
2020).
44 Sunoco Partners Mktg. & Terminals L.P. v. Powder Springs Logistics, LLC, No. CV 17-1390-
LPS-CJB, 2020 WL 3605623, at *2 (D. Del. July 2, 2020); OHIO CRIM. SENT’G COMM’N, supra note 34,
at 51 (nearly half of surveyed judges had allowed witnesses to testify by video in criminal proceedings
even though the trials were not fully remote).
45 Order, In re Ill. Cts. Response to COVID-19 Emergency/ Remote Jury Section in Civil Cases, No.
M.R. 30370 (Ill. Oct. 27, 2020), https://courts.illinois.gov/SupremeCourt/Announce/2020/102720-1.pdf

[https://perma.cc/ME3R-CAQA].
46 McCormack Testimony, supra note 5, at 2.
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approximately 122,000 remote hearings between March 24 and June 1,

2020.47 In 2020, Professor Jenia Iontcheva Turner surveyed state and federal
judges, prosecutors, and defense attorneys in Texas as to their experience
with remote court proceedings.48 Professor Turner found that that while just
over one-quarter of respondents had participated in remote criminal
proceedings before the pandemic, more than 92% had done so during the
pandemic.49 Likewise, 93% of Ohio judges surveyed by the state’s criminal
sentencing commission reported using some sort of remote technology to
reduce face-to-face interactions during the pandemic.50
To be clear, remote court has not exempted the justice system from the
impact of COVID-19. In particular, more limited use of trials, both remote
and in person, has led to overwhelming backlogs in many jurisdictions. In
New York City, for example, state and federal courts conducted a combined
9 criminal trials between March and November 2020, compared to 800
criminal trials in 2019, leaving hundreds of people in limbo in pretrial
detention.51 These delays have contributed to a humanitarian crisis in which
the virus has worked its way through prisons and jails while many people
await progress in their cases, disproportionately affecting minority
defendants, who are both more likely to be subject to pretrial detention and
more vulnerable to the virus.52
Yet despite its limits, the expansion of remote proceedings has allowed
courts to maintain many basic functions during the pandemic, and there are
strong indications from many court leaders that expanded remote
proceedings will continue even when the pandemic subsides. Texas’s Chief
47 Erika Rickard & Qudsiya Naqui, Coronavirus Accelerates State Court Modernization Efforts, PEW
CHARITABLE TRS. (June 18, 2020), https://www.pewtrusts.org/en/research-and-
analysis/articles/2020/06/18/coronavirus-accelerates-state-court-modernization-efforts
[https://perma.cc/789G-9ZE4].
48 See Turner, supra note 24, at 35.
49 See id. at 38–39.
50 OHIO CRIM. SENT’G COMM’N, supra note 34, at 45.
51 Hong & Ransom, supra note 21. Maine and Texas experienced similar backlogs. See Pandemic
Causes ‘Staggering’ Court Backlog in Maine, ASSOCIATED PRESS (Nov. 8, 2020), https://apnews.com/
article/virus-outbreak-pandemics-maine-5e056e9c004152929d614dd3f6c5ff82 [https://perma.cc/3GAH
-AVN4] (reporting state court officials in Maine warning of a “staggering” backlog); Jenni Bergal, Some
States Halt Jury Trials Again, Leaving Staggering Backlogs and ‘a Lot of People Sitting in Jail,’ USA
TODAY (Dec. 8, 2020), https://www.usatoday.com/story/news/nation/2020/12/08/jury-trials-stopped-
some-states-backlogs-build-amid-covid-19/6491162002/ [https://perma.cc/3ZZS-NBSG] (reporting
Texas’s court administrator warned it may be “years” before the state gets through its trial backlog).
52 See Jenny E. Carroll, Pretrial Detention in the Time of COVID-19, 115 NW. U. L. REV. ONLINE
60, 70, 72–77 (2020); Health Equity Considerations and Racial and Ethnic Minority Groups, CTRS. FOR
DISEASE CONTROL & PREVENTION (Feb. 12, 2021), https://www.cdc.gov/coronavirus/2019-
ncov/community/health-equity/race-ethnicity.html [https://perma.cc/XY5F-BR6F].
1885
Justice Nathan Hecht told a reporter in July 2020, “We’re going to be doing
court business remotely forever . . . . This has changed the world.”53 Ohio’s
Chief Justice Maureen O’Connor similarly argued that “[w]e’ve got to
embrace the changes and move[] this institution in that direction,” 54 a
sentiment echoed by many of the state’s judges in a survey, where 82% said
they are considering continuing some of their pandemic-era changes into
“non-emergency” times, including virtual preliminary hearings. 55 In July
2020, Michigan Chief Justice McCormack put it simply: “Oh, you never go
back. There’s no way we’re going back.”56
II. THE PANDEMIC EXPERIENCE SHOWS REMOTE COURT’S

SHORTCOMINGS AND POTENTIAL
Remote proceedings unquestionably served their primary purpose:
courts have been able to continue operating while still heeding public-health
guidance to limit the number of people physically present in courthouses.
53 Allie Reed & Madison Alder, Zoom Courts Will Stick Around as Virus Forces Seismic Change,
BLOOMBERG L. (July 30, 2020, 3:50 AM) [hereinafter Reed & Adler, Zoom Courts],
https://news.bloomberglaw.com/us-law-week/zoom-courts-will-stick-around-as-virus-forces-seismic-
change [https://perma.cc/3Q65-RQ9Y].
54 Marc Kovac, COVID, Sentencing Reform Among Focuses for Final Years of Chief Justice
Maureen O’Connor’s Term, COLUMBUS DISPATCH (Dec. 29, 2020), https://www.dispatch.com/

story/news/politics/state/2020/12/29/oconnor-heading-into-final-2-years-supreme-court-chief-justice/
4006669001/ [https://perma.cc/3484-5P79]; see also Nathan B. Coats, Chief Justice Introduction to
COLO. CTS., COLORADO JUDICIAL BRANCH ANNUAL STATISTICAL REPORT: FISCAL YEAR 2020 (2020),
https://www.courts.state.co.us/userfiles/file/Administration/Planning_and_Analysis/Annual_Statistical_
Reports/2020/FY2020%20Annual%20Statistical%20Report-FINAL.pdf [https://perma.cc/NZ4E-VP3S]
(“We will no doubt continue the use of virtual proceedings to the extent that it is consistent with our
constitutional obligations.”); Turner, supra note 24, at 64 (noting that 66% of surveyed state judges and
48% percent of surveyed federal judges said they wanted to see remote videoconference proceedings used
more frequently after the pandemic is over).
55 OHIO CRIM. SENT’G COMM’N, supra note 34, at 53; see also OHIO CRIM. SENT’G COMM’N,
COVID-19 AND THE COURTS 2020: FOLLOW-UP INTERVIEWS ADDENDUM TO THE FULL REPORT 4–5
(2020) [hereinafter OHIO CRIM. SENT’G COMM’N FOLLOW-UP], http://www.sc.ohio.gov/coronavirus/
resources/CSC-COVIDReportAddendum.pdf [https://perma.cc/Y9FF-YXQE] (recounting respondents’
opinions that pandemic-era changes will continue).
56 Karen J. Bannan, The Wheels of Justice Supercharged — And on Zoom, COMMONS (July 30, 2020),
https://wearecommons.us/2020/07/30/the-wheels-of-justice [https://perma.cc/2ZPF-TWPM]; see also

Brandon Birmingham, Three Ways COVID-19 Makes the Criminal Courts Better, DALL. EXAMINER
(May 8, 2020), https://dallasexaminer.com/editorial/local-commentaries/three-ways-covid-19-makes-
the-criminal-courts-better [https://perma.cc/6YCD-H23U] (noting a Texas criminal court judge
expressed hope that remote proceedings become permanent); Lyle Moran, How Hosting a National
Pandemic Summit Aided the Nebraska Courts System with Its COVID-19 Response, AM. BAR ASS’N
LEGAL REBELS PODCAST (May 13, 2020, 6:00 AM), https://www.abajournal.com/legalrebels/
article/rebels_podcast_episode_052 [https://perma.cc/MG9G-QW5W] (reporting that the Nebraska
Supreme Court chief justice expects “courts will continue to use video technology for many hearings”
after the pandemic).
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But has the forced innovation posed by the pandemic served, in the words of
Michigan Chief Justice McCormack, as “the disruption our industry[, the
courts,] needed”?57
The answer to this question is emphatically, “It depends.” This Part
looks at how the use of remote technology has affected the experience of
“going to” court, with a particular (but not exclusive) focus on tenants facing
eviction. We suggest that remote court has been at times a boon to access to
justice, at others an instrument of unfairness, and sometimes a bit of both—
often depending on the nature of the proceedings, the rules and procedures
courts put in place, and the resources and tech savvy of the relevant court
users. These equivocal experiences should inform future policymaking and
encourage caution as many judges look to expand and make permanent
remote innovations.
A. Convenience for Many, Exclusion for Some

Going to court frequently requires a substantial time commitment from
both lawyers and litigants. Lawyers can sit in court for hours to appear before
a judge for a few minutes—often charging fees to their clients the whole
time. Litigants and witnesses themselves often must take off work or line up
childcare in order to wait for their cases to be called. All participants must
travel to and from the courthouse.
On the basic measures of time saving and convenience, remote court
has been a sea change for many court users. At the same time, the expansion
of remote court during the pandemic has also laid bare the so-called digital
divide. For individuals without access to or comfort with technology, remote
court can functionally close the courthouse door to meaningful participation.
1. Time Savings
The time-saving dimension of remote court has been widely observed
across many sources and many kinds of proceedings. Professor Turner’s
survey of Texas judges, prosecutors, and defense lawyers found that large
majorities across all three groups thought the online proceedings used during
the pandemic saved time or resources for prosecutors, the court, defense
attorneys, and defendants.58 An organization representing domestic violence
survivors in New York recounted to a reporter that prior to the pandemic, her
clients “would often wait around the courthouse for hours,” or even all day,
57 Expanding Court Operations II: Outside the Box Strategies: Administering the Courts While the
COVID-19 Curve Is Flattened, NAT’L CTR. FOR STATE CTS. (May 19, 2020),
https://cdm16501.contentdm.oclc.org/digital/collection/facilities/id/242 (last visited Apr. 2, 2021).
58 Turner, supra note 24, at 35, 41–43.
1887
waiting for their cases to be called.59 With remote court, the organization
“files the petition electronically, the litigant appears before a judge by phone
within roughly an hour, and the order of protection is emailed to them in 30
minutes to an hour.”60 Similarly, a corporate lawyer emphasized the benefits
to lawyers, clients, and witnesses: “[It] is ‘beneficial for everyone’s
schedules, efficiency and cost. You don’t have to have an expert sit for weeks
in a courtroom and wait to be called.’”61 A defense attorney surveyed by
Professor Turner suggested that the convenience associated with allowing
defendants not in custody to appear in court over video reduced prosecutors’
leverage in plea negotiations.62
These benefits were echoed in several of our interviews about eviction
proceedings as well. One housing and consumer legal-aid attorney in Florida
noted that the jurisdiction’s remote hearings were “on-time,” “quick,” and
“efficient,” in a way that the courthouse had never been previously. “[You]
don’t have to wait forty-five minutes in a hallway to be called into a hearing
room,” the attorney added.63 A legal-services lawyer in Missouri and a court
observer in Texas both noted that remote hearings had made it possible for
many tenants to appear in court despite childcare and work obligations that
otherwise would have prevented them from making a physical appearance.64
The court watcher in Texas recounted a tenant who had three children and a
job and who said she would not have been able to make it to court if the
proceedings had been in person. “For tenants who are tech savvy,” the court
watcher added, “remote proceedings are great.”65 A pre-pandemic report by
the Self-Represented Litigation Network similarly observed that
videoconferencing technology can reduce the time and expenses associated
with going to court, including travel time, transportation costs, childcare, lost
wages, and other day-to-day costs.66
59 Reed & Alder, Virtual Hearings, supra note 36.

60 Id.
61 Reed & Alder, Zoom Courts, supra note 53.
63 Telephone Interview with legal-services provider in Florida (Dec. 16, 2020) (on file with journal).
64 See Telephone Interview with court watcher in Texas (Nov. 12, 2020) (on file with journal);
Telephone Interview with legal-services provider in Missouri (Nov. 11, 2020) (on file with journal)
[hereinafter Nov. 11 Telephone Interview with legal-services provider in Missouri].
65 Telephone Interview with court watcher in Texas, supra note 64.
66 See JOHN GREACEN, SELF-REPRESENTED LITIG. NETWORK, REMOTE APPEARANCES OF PARTIES,
ATTORNEYS AND WITNESSES 2–3 (2017); see also CAMILLE GOURDET, AMANDA R. WITWER, LYNN
LANGTON, DUREN BANKS, MICHAEL G. PLANTY, DULANI WOODS & BRIAN A. JACKSON, RAND CORP.,
COURT APPEARANCES IN CRIMINAL PROCEEDINGS THROUGH TELEPRESENCE 4–6 (2020),
https://www.rand.org/pubs/research_reports/RR3222.html [https://perma.cc/Y7D8-E6BJ] (discussing
advantages and disadvantages of remote proceedings in criminal cases).
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In some instances, time savings have also meant expanded access to

legal services for low-income tenants. For example, in one jurisdiction, a
housing attorney noted that the added convenience of remote proceedings
resulted in the legal-aid office being able to serve many more clients than it
had prior to the pandemic.67 Pre-pandemic research on remote proceedings
in Montana similarly found that video court appearances in both civil and
criminal hearings enabled legal-aid organizations to serve previously
underserved parts of the state.68
Early data indicate that remote court has also corresponded with
increased appearance rates in some categories of cases, suggesting that added
convenience has a concrete impact.69 For example, in a survey conducted by
the Ohio Criminal Sentencing Commission, juvenile judges reported that
appearance rates slightly increased because parents no longer needed to miss
work and defendants no longer struggled to secure transportation to the
courthouse.70
2. The Digital Divide
While these benefits are meaningful and important, they are only
available to parties with access to and comfort with the required remote
technologies. The other side of the remote court experience is that it has
generated substantial hurdles for individuals on the wrong side of the digital
divide.
While computers and broadband internet have extensive coverage in the
United States, 71 these technologies are not equally accessible to all
communities. In 2019, 29% of adults with household incomes below $30,000
did not own a smartphone, 44% did not have home broadband services, and
67 Telephone Interview with legal-services provider in Florida, supra note 63.

69 Will Remote Hearings Improve Appearance Rates?, NAT’L CTR. FOR STATE CTS. (May 13, 2020),
https://www.ncsc.org/newsroom/at-the-center/2020/may-13 [https://perma.cc/3TVM-VJVT] (noting that

some reports suggest more litigants were showing up for remote hearings than had for in-person hearings
pre-pandemic); see also Elizabeth Thornburg, Observing Online Courts: Lessons from the Pandemic
(Sept. 21, 2020) (unpublished manuscript), https://ssrn.com/a=3696594 [https://perma.cc/QJC3-UHX8]
(reporting that family court judges and child-advocate staff saw a higher level of parent participation in
remote proceedings as compared to in-person proceedings).
70 See OHIO CRIM. SENT’G COMM’N FOLLOW-UP, supra note 55, at 2–3 (finding, however, that
outside of juvenile proceedings, virtual hearings had no impact on appearance rates).

71 In 2016, for instance, 81% of households had a broadband connection and 89% had a computer.
CAMILLE RYAN, U.S. CENSUS BUREAU, COMPUTER AND INTERNET USE IN THE UNITED STATES: 2016, at
1 (2018), https://www.census.gov/content/dam/Census/library/publications/2018/acs/ACS-39.pdf
[https://perma.cc/2GJW-XM37].
1889
46% did not own a traditional computer.72 There are substantial disparities in
access to broadband internet and computers according to income and race.73
Americans who live in rural areas are also less likely to have access to
broadband internet,74 as are people with disabilities, who may also require
special technology in order to engage in online activities such as remote court
proceedings.75 Access issues have been exacerbated during the pandemic as
libraries and other public access points for computer and internet use have
frequently closed their doors.76
In the eviction context, the housing attorneys and court watchers we
interviewed reported that many tenants lack the stable high-speed internet
access that most video platforms require and are generally new to navigating
such platforms, as are many of the witnesses that tenants may seek to call.77
For these individuals, remote proceedings create obstacles, not convenience.
As a housing attorney in Florida observed, many low-income individuals
who might have been able to get a ride to the courthouse are struggling to
72 See Monica Anderson & Madhumitha Kumar, Digital Divide Persists Even as Lower-Income
Americans Make Gains in Tech Adoption, PEW RSCH. CTR. (May 7, 2019), https://www.pewresearch
.org/fact-tank/2019/05/07/digital-divide-persists-even-as-lower-income-americans-make-gains-in-tech-
adoption [https://perma.cc/K8L2-UNCN].
73 Households with incomes of $100,000 almost universally had access to these technologies. Id.
Only 66% and 61% of Black and Latino Americans, respectively, had access to broadband internet at
home, compared to 79% of white Americans. Andrew Perrin & Erica Turner, Smartphones Help Blacks,
Hispanics Bridge Some – But Not All – Digital Gaps with Whites, PEW RSCH. CTR. (Aug. 20, 2019),
https://www.pewresearch.org/fact-tank/2019/08/20/smartphones-help-blacks-hispanics-bridge-some-
but-not-all-digital-gaps-with-whites/ [https://perma.cc/4ZEZ-T5VC].
74 Andrew Perrin, Digital Gap Between Rural and Nonrural America Persists, PEW RSCH. CTR. (May
31, 2019), https://www.pewresearch.org/fact-tank/2019/05/31/digital-gap-between-rural-and-nonrural-

america-persists/ [https://perma.cc/J4PH-NXPY].
75 Monica Anderson & Andrew Perrin, Disabled Americans are Less Likely to Use Technology, PEW
RSCH. CTR. (April 7, 2017), https://www.pewresearch.org/fact-tank/2017/04/07/disabled-americans-are-

less-likely-to-use-technology/ [https://perma.cc/6ABT-9PKT]. Disabled Americans are about twenty
percentage points less likely than those without a disability to say that they have access to home
broadband internet or own a computer, smartphone, or tablet. Id. With respect to special technology, the
American Bar Association (ABA) has noted that hearing-impaired litigants may require real-time court
transcription or captioning, which certain online platforms may not be able to provide. AM. BAR ASS’N,
REPORT IN SUPPORT OF ABA RESOLUTION 117, at 6 (2020), https://www.americanbar.org/content/dam/
aba/directories/policy/annual-2020/117-annual-2020.pdf [https://perma.cc/8F5V-WKUC].
76 See, e.g., Elizabeth Owens-Schiele, COVID-19 Restrictions Force Area Public Libraries to Revert
to Reduced Offerings and Curbside Service, CHI. TRIB. (Dec. 1, 2020, 9:57 AM),
https://www.chicagotribune.com/suburbs/barrington/ct-aph-library-services-covid-tl-1203-20201202-
4pvxnscqzffqzffezxqhtc4dmi-story.html [https://perma.cc/GX44-4JYU] (documenting library closures
due to the pandemic).
77 See Telephone Interview with legal-services provider in Michigan (Oct. 22, 2020) (on file with
journal); Telephone Interview with legal-services provider in Ohio (Nov. 20, 2020) (on file with journal);
Telephone Interview with legal-services provider in Florida, supra note 63.
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access technology. 78 Among other challenges, tenants who are facing

eviction may stop paying phone bills in an effort to keep up with rental
payments, leaving them without an active device to use for an eviction
hearing.79
One way the digital divide has manifested is through technological
challenges during the proceedings. Poor audio or video quality and poorly
positioned cameras have often made it difficult for participants to follow
proceedings.80 In Missouri, a self-represented tenant sought to access a video
hearing on both his phone and his wife’s phone but was unable to do so, and
he was therefore forced to appear over audio while the judge, the plaintiff’s
lawyer, and the plaintiff’s witness all appeared via video. 81 Among other
disadvantages, the tenant was unable to share documents over video with the
court.82 In Massachusetts, a tenant won a new trial after the court concluded
she had been prejudiced by her inability to present evidence due to
technological issues at her trial over the Zoom video platform.83 The tenant,
who was self-represented during the trial but represented by legal services
on appeal, had been unable to send in documents electronically to the court
or to share her screen over Zoom during the trial.84 Additionally, while courts
frequently assume tenants are accessing remote platforms on a computer, our
interviews suggest they are often doing so on a phone for which the remote
platform may not be optimized, making it unlikely the tenant can see
everything happening in the proceeding. 85 This has been a particular
challenge for reviewing evidence.86
Technology issues have also meant that some litigants have been unable
to access proceedings altogether. Several legal-services attorneys reported to
us that judges across jurisdictions have been willing to issue default

79 We are grateful to John Pollock, Coordinator of the National Coalition for a Civil Right to Counsel,
for raising this point based on his conversations with tenant lawyers and advocates.
80 An observation of fifty-nine online plea hearings in Texas found audio or connection problems in
approximately 20% of cases. Turner, supra note 24, at 60; see also Telephone Interview with court
watcher in Texas, supra note 64 (noting that judges are impatient with tenants experiencing technology
issues).
81 Petition for Writ of Prohibition at 4–5, Missouri ex rel. Logan v. Neill, No. 2022-AC05861 (Mo.
Aug. 25, 2020).

82 Id. at 6.
83 Decision on Defendant’s Motion for a New Trial at 6–7, Jamar Acquisitions LLC v. Avila, No.
20SP582 (Mass. Hous. Ct. Jan. 14, 2021).

84 Id. at 6.
85 See, e.g., Telephone Interview with legal-services provider in Texas (Oct. 30, 2020) (on file with
journal) (explaining that tenants frequently use their phones for proceedings on Zoom).
86 See id.
1891
judgments against tenants who fail to appear for remote hearings without
inquiring into whether they had difficulty accessing the remote system. 87
This corresponds with concerns raised in a June 2020 survey of legal-aid
attorneys by the National Housing Law Project. Eighty-eight percent of
respondents raised due process concerns about remote eviction proceedings,
including the impact of the digital divide, racial disparities in access to
technology, and the use of default judgments against tenants who face
technology challenges.88 Remote court can pose additional hurdles for non-
English speakers. Court administrators have reported that non-English
speakers have a more difficult time understanding and communicating with
remote interpreters.89
Courts and legal-aid offices have gone to varying lengths to bridge this
digital divide. Some courts have spent considerable resources to expand
access by creating computer kiosks in the courthouse where parties can
access their remote hearings. 90 Others have simply provided a phone-in
option for remote hearings without appreciating that tenants may also lack
access to phones or the necessary phone-plan minutes to wait on the line for
hours until the court calls their case.91 Legal-aid providers have purchased
routers to turn their parking lots into digital hot spots92 and microphones to
turn conference rooms into remote-hearing access points. 93 In Texas, one
judge insisted on moving a case forward remotely, which required the legal-
services attorney to drive a tablet to the client’s house so the client could
87 See Telephone Interview with legal-services provider in Michigan, supra note 77; Telephone
Interview with legal-services provider in Missouri (Nov. 13, 2020) [hereinafter Nov. 13 Telephone
Interview with legal-services provider in Missouri] (on file with journal); see also Telephone Interview
with Tanaya Srini, Nat’l Hous. L. Project (Mar. 23, 2021) (recounting anecdotes from legal-services
attorneys that tenants had default judgments entered against them after being unable to access remote
eviction proceeding due to technology issues).
88 NAT’L HOUS. L. PROJECT, STOPPING COVID-19 EVICTIONS: SURVEY RESULTS 2 (2020),
https://www.nhlp.org/wp-content/uploads/Evictions-Survey-Results-2020.pdf [https://perma.cc/MB9H-
Q5XZ].
89 ROBIN DAVIS, BILLIE JO MATELEVICH-HOANG, ALEXANDRA BARTON, SARA DEBUS-SHERRILL &
EMILY NIEDZWIECKI, RESEARCH ON VIDEOCONFERENCING AT POST-ARRAIGNMENT RELEASE HEARINGS

20 (2015), https://www.ncjrs.gov/pdffiles1/nij/grants/248902.pdf [https://perma.cc/Q58A-T2WS].
90 See Telephone Interview with legal-services provider in Florida, supra note 77.
91 See Nov. 13 Telephone Interview with legal-services provider in Missouri, supra note 87; see also
Tony Romm, Lacking a Lifeline: How a Federal Effort to Help Low-Income Americans Pay Their Phone
Bills Failed Amid the Pandemic, WASH. POST (Feb. 9, 2021, 6:00 AM), https://www.washingtonpost
.com/technology/2021/02/09/lifeline-broadband-internet-fcc-coronavirus/ [https://perma.cc/Z8ZR-KB
CY] (discussing shortcomings in the federal Lifeline program to provide low-income families with access
to mobile phones).
92 Telephone Interview with legal-services provider in Michigan, supra note 77.
93 Telephone Interview with legal-services provider in Ohio, supra note 77.
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participate. 94 However, even when courts have taken affirmative steps to

expand access, implementation has had mixed success. In one jurisdiction in
Florida, for example, the court created access points within the courthouse
but failed to include notice of the option in its summonses.95
B. A Day in Court Without a Courtroom

In-person court proceedings involve countless interactions between
judges, litigants, attorneys, jurors, and witnesses. Replacing these in-person
interactions with ones undertaken via technology has had decidedly mixed
results. This Section details the areas that have raised the most challenges.
1. Attorney–Client Communication
One of the most commonly cited concerns with remote court is its
impact on attorney–client communications. In our interviews about eviction
proceedings, for example, attorneys reported that they have had very limited
ability to speak with their clients during remote proceedings. Without being
able to whisper or pass notes easily, it can be difficult to adjust strategy based
on what the opposing parties have said. 96 For example, a legal-services
attorney in Florida recounted one case in which his client wished to speak in
response to a contested issue in an eviction proceeding. In normal
circumstances, the attorney would have whispered with his client to get more
information and assisted her in responding in a way that served her interests.
In this remote hearing, however, when the judge asked the attorney if he
wanted the client to speak, the attorney declined, as he could not be certain
that the opportunity would benefit the client.97 Similar concerns have been
raised in the context of criminal cases.98
Differences in court resources and individual judges’ comfort with
technology have also affected the degree to which remote technologies
undermine attorney–client communication.99 Some courts are making virtual
94 Telephone Interview with legal-services provider in Texas, supra note 86.

96 For example, a 2010 survey by the National Center for State Courts found that 37% of courts using
videoconferencing had no provisions to enable private communications between attorneys and their
clients when they were in separate locations. Eric T. Bellone, Private Attorney- Client Communications
and the Effect of Videoconferencing in the Courtroom, 8 J. INT’L COM. L. & TECH. 24, 4445 (2013).
98 Turner, supra note 24, at 21, 57–58 (discussing the disadvantages of remote proceedings for
defense attorneys to communicate with clients before, during, and after court appearances due to
limitations on videoconferencing in some jails).
99 One legal-services attorney recounted that a judge told them they were holding in-person hearings
because they did not have the IT staff necessary to operate breakout rooms. Telephone Interview with
legal-services provider in Michigan, supra note 77. In Ohio, one judge reported that he managed without
1893
breakout rooms available for attorneys and clients to access in the middle of
proceedings,100 while other courts are instructing attorneys to simply send
text messages to their clients if they need to communicate. 101 While one
eviction attorney we interviewed said text messages are often sufficient,102
another explained that she would never willingly conduct a full trial without
being next to the client.103 Where courts do provide breakout rooms, some
attorneys report being reluctant to interrupt the court proceeding to access
them.104
There is also an indication that judges may not be fully aware of the
extent to which videoconferencing is impacting attorney–client interactions.
In Professor Turner’s Texas survey, for example, 63% of defense attorneys
said that remote court interfered with attorney–client confidentiality, but
only 21% of judges agreed.105
2. Assessing Documentary Evidence and Witnesses
Many judicial proceedings involve evidence—documents as well as
witness testimony. Remote court has changed how courts engage with
evidence, posing logistical challenges and, in the case of testimony, raising
deeper questions about whether video is an adequate substitute for in-person
interactions.
With respect to documentary evidence, our interviews with legal-
services providers representing tenants suggest that courts have struggled
with the transition to remote proceedings. 106 In some jurisdictions, courts
have allowed parties to submit documentary evidence in a video hearing by
holding papers up to the camera, making it difficult for other participants to
review the documents.107 Elsewhere, courts have required parties to share
evidence electronically with all other participants, a process that has been
confusing to many self-represented tenants.108 In Missouri, a self-represented
dedicated IT staff because his court reporter happened to be proficient with technology. OHIO CRIM.
SENT’G COMM’N FOLLOW-UP, supra note 55, at 9.
101 Nov. 13 Telephone Interview with legal-services provider in Missouri, supra note 87.
102 Telephone Interview with legal-services provider in Texas, supra note 64.
103 See Nov. 13 Telephone Interview with legal-services provider in Missouri, supra note 87.
104 See Telephone Interview with legal-services provider in Michigan, supra note 77 (describing
some judges’ frustration when asked to pause a proceeding to allow attorneys and clients to speak in
breakout rooms).
105
Turner, supra note 24, at 51.
106 See Telephone Interview with legal-services provider in Ohio, supra note 77 (discussing a court
missing exhibits after implementing new email requirements).

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tenant won a new trial after he had been unable to physically deliver exhibits
to the court (he mailed exhibits to the court that arrived after his trial date)
and lacked video capability to share evidence during the remote trial. 109
Further complicating matters, in many cases evidence—such as text
communication between tenants and landlords—is generated just before a
hearing, making it difficult for parties to share exhibits in advance.110
Remote court has posed even greater challenges with respect to witness
testimony, where both civil and criminal attorneys report that interactions
with witnesses—assessing credibility, cross-examining, impeaching—are
made more difficult by remote court.111 Indeed, a substantial body of pre-
pandemic research suggests that the use of remote court can have subtle
effects on credibility assessments. 112 For example, in a 2017 U.S.
Government Accountability Office report on immigration courts, judges in
three of the six surveyed courts identified instances where they had changed
credibility assessments made during a video hearing after holding a
subsequent in-person hearing. 113 In one instance, an “immigration judge
reported being unable to identify a respondent’s cognitive disability over
[video teleconference], but that the disability was clearly evident when the
respondent appeared in person at a subsequent hearing, which affected the
judge’s interpretation of the respondent’s credibility.”114 Several psychology
studies have specifically looked at the impact of video testimony by children
in the context of sexual-abuse cases and found that video testimony had an
impact on jurors’ perceptions of the child’s believability.115
109 See Order Granting Motion for a New Trial, E. Wright Inv. Strategies LLC v. Logan, No. 2022-
AC05861 (Mo. Sept. 28, 2020); Petition for Writ of Prohibition, supra note 81, at 4–6; Rebecca Rivas,
Many Missouri Tenants Lack Legal Counsel During Eviction Proceedings, MO. INDEP. (Nov. 23, 2020),
https://missouriindependent.com/2020/11/23/many-missouri-tenants-lack-legal-counsel-during-
eviction-proceedings/ [https://perma.cc/HK59-MQRR].
111 Nov. 13 Telephone Interview with legal-services provider in Missouri, supra note 87 (discussing
testimony difficulties in the context of tenant cases); see also Turner, supra note 24, at 55 (discussing a
2020 survey of judges, prosecutors, and defense attorneys that found wide agreement that “the online
setting makes it difficult for the parties to assess” and, where necessary, “challenge witness accounts or
credibility”).
112 For a discussion how social psychology and communications research should inform the use of
videoconferencing in court, see Anne Bowen Poulin, Criminal Justice and Videoconferencing
Technology: The Remote Defendant, 78 TUL. L. REV. 1089, 1114 (2004).
113 U.S. GOV’T ACCOUNTABILITY OFF., GAO-17-438, IMMIGRATION COURTS: ACTIONS NEEDED TO
REDUCE CASE BACKLOG AND ADDRESS LONG-STANDING MANAGEMENT AND OPERATIONAL

CHALLENGES 55 (2017), https://www.gao.gov/assets/690/685022.pdf [https://perma.cc/ESA8-GSZ7].
114 Id.
115 Holly K. Orcutt, Gail S. Goodman, Ann E. Tobey, Jennifer M. Batterman-Faunce & Sherry
Thomas, Detecting Deception in Children’s Testimony: Factfinders’ Abilities to Reach the Truth in Open
1895
In some jurisdictions, concerns about assessing witness credibility have

led judges to delay trials during the pandemic. A federal district court judge
in Connecticut, for example, continued a civil bench trial in June 2020
because “[t]he very purpose of trials as distinguished from pre-trial motions
is to assess the credibility of witnesses, especially the credibility of fact
witnesses” and “[t]he credibility of a witness is best assessed when the
witness’s face is fully visible and the witness appears in person or is recorded
being examined in person.” 116 On the other hand, some judges have
suggested that it is actually easier for them to assess credibility over a
videoconference because they can see the witnesses’ full faces rather than
“someone’s left ear” peering from the bench. 117 Others have argued that
while in-person testimony is generally preferable, masking and other safety
requirements during the pandemic undercut the benefits, such as the ability
to evaluate “the testimony of a witness’ facial expression and diction.”118
3. Courtroom Management
Remote court has also posed challenges for judges’ ability to manage
their courtrooms and ensure fair proceedings. Remote technology offers new
opportunities for distraction and inappropriate conduct during court
proceedings, and it can be difficult for judges to identify such conduct and
intervene. For example, a legal-services attorney in Ohio reported that he
observed housing managers being coached off camera when they testified
remotely.119 Professor Elizabeth Thornburg echoed a similar concern in her
Court and Closed-Circuit Trials, 25 LAW & HUM. BEHAV. 339, 357, 358, 363 (2001) (using a simulated
crime and trial to assess the impact of remote testimony by children in sexual-abuse cases, and finding
mock jurors rated children who testified via closed-circuit television as less honest, intelligent, and
attractive as compared to children who testified in person, and concluded that their testimony was less
accurate); see also Sara Landström, Pär Anders Granhag & Maria Hartwig, Children’s Live and
Videotaped Testimonies: How Presentation Mode Affects Observers’ Perception, Assessment and
Memory, 12 LEGAL & CRIMINOLOGICAL PSYCH. 333, 344 (2007) (finding mock jurors perceived
children’s live testimony in more positive terms and rated the children’s statements as more convincing
than video testimony). However, not every study has found harmful effects from video proceedings. A
series of studies from the 1970s and 1980s based on reenacted trials, for example, generally found that
videotaped trials had no impact on outcomes. See, e.g., Gerald Miller, Televised Trials: How Do Juries
React?, 58 JUDICATURE 242, 246 (1974) (describing study that found no impact); Gerald R. Miller,
Norma E. Fontes & Gordon L. Dahnke, Using Videotape in the Courtroom: A Four-Year Test Pattern,
55 U. DET. J. URB. L. 655, 668–69 (1978) (making a similar observation as Miller’s Televised Trials).
116 Order, Conn. Fair Hous. Ctr. v. CoreLogic Rental Prop. Sols., LLC, No. 3:18-cv-00705-VLB (D.
Conn. June 26, 2020) (No. 190).

117
Video: Connecticut Judicial Branch Virtual Courts CLE, at 01:08:00–01:09:40 [hereinafter
Virtual Courts Video] (statement of Judge James Abrams) (on file with journal).
118 Lynch v. State, No. HHDCV166067438, 2020 WL 5984790, at *3 (Conn. Super. Ct. Sept. 11,
2020).
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study of Texas family court proceedings.120 And after a remote voir dire in a
civil trial in California, a defendant sought a mistrial due to prospective
jurors being distracted by children or electronics, using home exercise
equipment, and even lying in bed, “possibly asleep.” 121 In a traffic court
hearing, a plastic surgeon logged in while in the middle of surgery,
prompting the judge to reschedule.122
At the same time, remote technology has also given judges new tools to
control their courtrooms. During a webinar, for example, a family court
judge in Connecticut suggested that when “emotional scenes” occur during
remote court, “the mute button is a great tool.”123 While muting disruptive
individuals may be appropriate under some circumstances, it is also a shift
in courtroom dynamics that could open the door to abuses of power. Given
the speed with which courts have had to adopt remote technology, many
questions about how courtroom norms should evolve have been left
unanswered.
C. Special Challenges for Self-Represented Litigants

Remote court raises unique concerns for self-represented litigants, who
have had to navigate new and changing remote systems without the resources
often available inside physical courthouses. This is no footnote: States report
that in some categories of cases, 70% to 98% of all cases involve at least one
litigant appearing without a lawyer. 124 Even under normal circumstances,
self-represented litigants face substantial obstacles in navigating the court
system, from parsing “legalese” on forms to following often-cumbersome
procedural steps.125 And there is also vast unmet need for legal assistance;
the State Bar of California reports, for example, that there are more than
120 Thornburg, supra note 69, at 25.

121 Debra Cassens Weiss, Potential Jurors Exercised, Curled Up on Bed During Virtual Voir Dire,
Motion Says in Asbestos Case, ABA J. (July 22, 2020, 2:41 PM), https://www.abajournal.com/news/
article/potential-jurors-exercised-curled-up-on-bed-during-virtual-voir-dire-motion-says [https://perma
.cc/6GWY-FAUN]. The defendant settled the case before the court ruled on the mistrial motion. Id.
122 Salvador Hernandez, So, Uh, a Plastic Surgeon Logged into Traffic Court via Zoom While
Operating on a Patient, BUZZFEED NEWS (Feb. 26, 2021, 7:23 PM), https://www.buzzfeednews.com/
article/salvadorhernandez/surgeon-operating-table-zoom-court-hearing [https://perma.cc/D699-C4GA].
123 Virtual Courts Video, supra note 117, at 01:13:38–01:14:10 (statement of Judge Michael A.
Albis).
124
Jessica K. Steinberg, Demand Side Reform in the Poor People’s Court, 47 CONN. L. REV. 741,
743 (2015).
125 JUD. COUNCIL OF CAL., HANDLING CASES INVOLVING SELF-REPRESENTED LITIGANTS 1-4–1-10
(2019), https://www.courts.ca.gov/documents/benchguide_self_rep_litigants.pdf [https://perma.cc/

CDM6-WQ3Q].
1897
7,500 potential low-income clients for every legal-aid attorney in the state.126
Remote court has exacerbated many of these challenges.
First, some jurisdictions have confusing instructions for participating in
remote proceedings or lack clear guidance for individuals who do not have
the required technology.127 These can be traps for the unwary. In Washington
State, for example, the Northwest Justice Project sued and ultimately settled
with a court that was requiring tenants facing eviction to call the day before
a hearing to schedule their remote appearance without providing clear notice
of the requirements.128 In Ohio, a legal-services lawyer reported that many
self-represented litigants found the log-in process for remote court confusing
and missed hearings as a result.129
A second challenge stems from the loss of access to the physical
courthouse, which is often a site where self-represented litigants are
connected with resources or legal services. For example, the director of a
legal-services organization in Missouri observed that prior to the pandemic,
legal-services attorneys “roamed the halls, offered informal advice, provided
helpful forms, built relationships. Some of these tenants would become
clients, others just got on-the-spot help with their cases.” 130 By contrast,
during the pandemic, the only outreach they were able to do was to give out
their phone numbers at the beginning of the day’s docket.131 Troublingly, in
one Ohio jurisdiction, the court refused to distribute fliers from legal services
during remote eviction cases out of concern that the court would appear to
be picking a side.132
Pre-pandemic research from the immigration court context suggests
that litigants’ disconnect from the physical courthouse can have broad
implications for case outcomes. A study by Professor Ingrid Eagly, which
looked at the use of video technology to adjudicate immigration proceedings
remotely, found that detained respondents were more likely to be deported
126 Id. at 1-2–1-3.

127 Eileen Guo, Logging In to Get Kicked Out: Inside America’s Virtual Eviction Crisis, MIT TECH.
REV. (Dec. 2, 2020), https://www.technologyreview.com/2020/12/02/1012810/video-evictions-zoom-
webex/ [https://perma.cc/UL3Z-HL4X].
128 Zoe Tillman, Landlords Are Illegally Evicting Tenants During the Coronavirus Pandemic.
Lawyers Fear a “Tsunami” of Evictions When State Moratoriums End, BUZZFEED NEWS (Apr. 22, 2020,
5:26 PM), https://www.buzzfeednews.com/article/zoetillman/coronavirus-illegal-evictions-moratorium-
rent-lawyer-aid [https://perma.cc/T5HC-7VPM].
129
Telephone Interview with legal-services provider in Ohio, supra note 77.
131 Id.; see also Telephone Interview with court watcher in Texas, supra note 64 (highlighting
difficulties of making people aware of legal services remotely).

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when their proceedings occurred over videoconference as compared to in

person.133 She found what she described as a “paradoxical result”: detained
immigrants whose proceedings occurred over video were more likely to be
deported, but not because judges denied their claims at higher rates. 134
Rather, they were less likely to take advantage of procedures that might help
them.135 Detained individuals who appeared in person were 90% more likely
to apply for relief, 35% more likely to obtain counsel, and 6% more likely to
apply for voluntary departure, as compared to similarly situated individuals
who appeared by video.136 These results were statistically significant, even
when controlling for other factors that could have influenced case
outcomes.137
Notably, among those individuals who actually applied for various
forms of relief, there was no statistically significant difference in outcome
after controlling for other factors. 138 However, because video participants
were less likely to seek relief or retain counsel, video cases were still
significantly more likely to end in removal. 139 Relying on interviews and
court observations, Professor Eagly suggested several potential reasons for
this dynamic, including logistical hurdles, challenges in communicating with
counsel, and difficulties in following what was happening over video.140
D. Differing Forms of Public Access

Remote court has also changed what it means to attend court as a
member of the public, although states’ approaches to public access have
varied widely. Some jurisdictions have provided for broad public access to
remote court, providing livestreams on their websites or YouTube; others
133 Professor Eagly used a nationwide sample of nearly 154,000 cases in which immigration judges
reached a decision on the merits during fiscal years 2011 and 2012. Eagly, supra note 23, at 966.
134 Id. at 937.
135 Id. at 937–38.
136 Id. at 938.
137 Among other things, Professor Eagly controlled for the type of proceeding and charge, the
respondent’s nationality, whether the respondent is represented by counsel, the judge, and the year the
proceedings took place. Id.
138 Id.
139 Professor Eagly looked at two samples, a national sample and a subset of locations that she called
the Active Base City Sample. She found that “[i]n the National Sample, 80% of in-person respondents
were ordered removed, compared to 83% of televideo respondents. In the Active Base City Sample, 83%
of in-person respondents were ordered removed, compared to 88% of televideo respondents.” The
disparities in outcomes were statistically significant. Id. at 960, 964, 966.
140 Id. at 978, 984, 989–90.
1899
have permitted public access by phone or video by request; and some have
not provided for any form of public access.141
Remote court offers at least the potential for greater transparency in
court proceedings. In jurisdictions that livestream court proceedings, court-
watching programs have reported being able to recruit and deploy many
more volunteers now that they can observe from home.142 Such livestreams
can also make it easier for family and friends to observe. One family court
judge in Texas tweeted that she had granted an adoption that “was witnessed
by a community of over 75 people from all over the world. There was much
joy and many tears.”143
Yet this greater transparency also comes with a privacy cost. While in-
person proceedings are open to the public, broadcasting court hearings over
the internet introduces “a loss of practical obscurity.”144 For example, for
some individuals an eviction is a source of embarrassment or even shame.145
It could be painful to know that anyone could view and potentially
disseminate images from such proceedings. Further, if public access to
proceedings is too unrestrained, courts also risk undermining laws that allow
for certain criminal cases to be sealed and records to be expunged—after all,
it is difficult to prohibit recording a court proceeding from the comfort of
one’s home.146
This is challenging terrain to navigate. In her article describing family
court observations, Professor Thornburg detailed measures some judges took
to preserve privacy, including removing broadcasts from YouTube when the
hearing ended, using breakout rooms to have sensitive conversations with
141 See, e.g., Turner, supra note 24, at 39–40 (noting that Texas makes live broadcasts available to
the public); ALBERT FOX CAHN & MELISSA GIDDINGS, VIRTUAL JUSTICE: ONLINE COURTS DURING
COVID-19, at 4 (2020) https://static1.squarespace.com/static/5c1bfc7eee175995a4ceb638/t/5f1b23e97a
b8874a35236b67/1595614187464/Final+white+paper+pdf.pdf [https://perma.cc/R9KY-F4R5]
(explaining that New York has no provisions for public or press access to remote proceedings).
142 Telephone Interview with court watcher in Texas, supra note 64. Public access within courthouses
varies as well, with some judges streaming while others do not. Id.
143 Justice Dennise Garcia (@kdgarcia), TWITTER (May 14, 2020, 9:38 PM), https://twitter.com/
kdgarcia/status/1261123727410020355 [https://perma.cc/LQQ4-NWQ4].
144 CAHN & GIDDINGS, supra note 141, at 3–4.
145 See, e.g., Casey Morris, Eviction in North Carolina as Pandemic Wears On, CAROLINA PUB.
PRES (Jan. 14, 2021), https://carolinapublicpress.org/41424/eviction-in-north-carolina-as-pandemic-

wears-on/ [https://perma.cc/JE6R-ZUKJ] (discussing embarrassment associated with being evicted).
146 For example, New York prohibits televising court proceedings and permits sealing criminal
records for some types of offenses. See N.Y. CIV. RIGHTS LAW § 52 (McKinney 2021); N.Y. CRIM. PROC.
LAW § 160.59 (McKinney 2021). Note that there is no First Amendment right to a televised trial.
Courtroom Television Network LLC v. New York, 833 N.E.2d 1197, 1200–01 (N.Y. 2005) (citing Estes
v. Texas, 381 U.S. 532, 549 (1965)).
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minors, and going offline for some sensitive testimony. 147 But there is little
guidance yet for exactly how judges should draw these lines.
E. Inconsistent Implementation
Finally, another striking aspect of our interviews was that system-wide
directives obscured substantial variation in court operations that arose as
courts within jurisdictions interpreted and used their authority differently,
reflecting at least in part an institutional culture in many court systems
resistant to centralized oversight.148
For example, legal-aid providers confirmed there is substantial
inconsistency regarding remote eviction proceedings, even within
courthouses, often as a result of a judge’s individual preference for video or
phone.149 In one large Texas county, nearly one-third of justices of the peace
were declining to use video despite having been provided with Zoom
licenses, according to one service provider.150 In one Michigan jurisdiction,
the vast majority of courts were operating remotely, but two courts were
requiring physical presence in the courtroom, or in a tent constructed in the
court’s parking lot. 151 In Kansas City, one judge who was previously
conducting remote hearings transitioned to in-person to avoid anti-eviction
protests that had become common on the remote platform. 152 Meanwhile,
some judges, so dissatisfied with the choice between remote and socially
distanced in-person proceedings, opted to simply delay trials for as long as
possible.153 In some courts, eviction dockets effectively shut down as judges
147 Thornburg, supra note 69, at 26–27.

148 Gordon M. Griller, Governing Loosely Coupled Courts in Times of Economic Stress, in FUTURE
TRENDS IN STATE COURTS 48, 48 (2010) (“It is no secret that some judges believe the traditional
definitions of judicial independence—freedom from control by other branches of government and
freedom from interference in case-related decisions—should include freedom from control by leadership
judges and managers responsible for the day-to-day operations of the court system.”). Such
“independence” is encouraged by a selection system where judges are generally selected by third parties,
either through elections or appointments, rather than by institutional actors within the judiciary itself,
giving them an independent source of legitimacy that can be in tension with court-administration
hierarchy. CHRISTINE M. DURHAM & DANIEL J. BECKER, A CASE FOR COURT GOVERNANCE PRINCIPLES
2–3 (2011), https://www.sji.gov/wp/wp-content/uploads/Becker-Durham-A-Case-for-Court-Governanc
e-Principles.pdf [https://perma.cc/6XPL-8A39].
149 Telephone Interview with legal-services provider in Florida, supra note 77; Telephone Interview
with court watcher in Texas, supra note 64.

1901
attempted to wait out the storm, while in others, judges have been moving
along as normal.154
Importantly, while the legal-services providers we interviewed had
many critiques of remote court, they all wanted and appreciated the ability
to participate remotely during the pandemic.155
III. CONSTITUTIONAL ISSUES RAISED BY REMOTE COURT

At their most extreme, the shortcomings of remote court also raise a
host of constitutional questions that are only beginning to wind their way
through the legal system—questions that will take on added salience as
courts emerge from crisis and develop long-term plans for remote
proceedings. We detail here both how courts have begun to address these
questions as well as constitutional values that should inform future
policymaking around the use of remote court. This discussion focuses on
federal constitutional rights, but it is worth noting that remote court
proceedings may raise additional questions under state constitutions.156
The most acute constitutional questions arise in the criminal context—
and, for this very reason, courts have shown a greater reluctance to advance
criminal trials remotely as compared to their civil counterparts.157 Take, for
example, the Sixth Amendment’s Confrontation Clause, which functions “to
ensure the reliability of the evidence against a criminal defendant by
subjecting it to rigorous testing.” 158 Proper testing requires that witnesses
appreciate the gravity of the proceedings, defendants have an opportunity to
cross-examine witnesses, and jurors have an opportunity to evaluate witness
credibility.159 Still, the Supreme Court has said the Confrontation Clause’s
preference for face-to-face confrontation “must occasionally give way to
considerations of public policy and the necessities of the case.”160
Confrontation rights are waivable, and a court may further dispense
with face-to-face confrontation over a defendant’s objections but only based
155 E.g., Telephone Interview with legal-services provider in Ohio, supra note 77 (expressing
gratitude for the ability to participate remotely rather than in person); Nov. 13 Telephone Interview with
legal-services provider in Missouri, supra note 87 (discussing health and safety benefits of remote
hearings).
156 For example, thirty-nine states have “open courts” or “right-to-remedy” clauses in their
constitutions. Robert F. Williams, State Constitutional Protection of Civil Litigation, 70 RUTGERS U. L.

REV. 905, 911 (2018).
157 See supra Part I.
158 Maryland v. Craig, 497 U.S. 836, 845 (1990).
159 See Mattox v. United States, 156 U.S. 237, 259 (1895).
160 Craig, 497 U.S. at 849 (quoting Mattox, 156 U.S. at 243).
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upon a case-specific determination that doing so is necessary and that there

are other guarantees that the testimony is reliable. Reviewing courts have set
high bars for these determinations.161
Indeed, because of “serious concerns under the Confrontation Clause,”
a divided Supreme Court rejected a proposed 2002 change to the Federal
Rules of Criminal Procedure that would have allowed video testimony when
a witness is unavailable to appear in person, when “appropriate safeguards”
ensure the reliability and technical quality of the testimony, and when
“exceptional circumstances” are present that necessitate remote testimony.162
“Virtual confrontation might be sufficient to protect virtual constitutional
rights; I doubt whether it is sufficient to protect real ones,” wrote Justice
Antonin Scalia in opposition to the proposed rule amendment.163 In 2020, a
unanimous Michigan Supreme Court ruled that two-way, interactive video
testimony (provided at trial prior to the pandemic) violated a defendant’s
right to confront witnesses under both the state and federal constitutions.164
Some courts have also applied confrontation rights to limit the use of video
in parole-revocation hearings.165
Recognizing the limits of video testimony, courts have struggled to
apply the Confrontation Clause amid a global pandemic.166 Courts that have
allowed remote testimony over a defendant’s objections have relied on the
unique necessity of the pandemic and the protections provided by modern
video platforms, including two-way communication.167 But other courts have
161 Id. at 850. Indicia of reliability included the physical presence of the witness, whether the
testimony was under oath, the opportunity for cross-examination, and the jury’s ability to observe the
witness’s reactions and demeanor. Id. at 846.
162 SUP. CT. OF THE U.S., AMENDMENTS TO RULE 26(B) OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE 4 (Apr. 29, 2002) (dissenting statement of Breyer, J.), https://web.archive.org/web/201004

09232731/http://www.uscourts.gov/rules/CR-26b.pdf.
163 Id. at 2 (statement of Scalia, J.).
164 People v. Jemison, 952 N.W.2d 394, 396 (Mich. 2020).
165 See, e.g., Wilkins v. Wilkinson, No. 01AP-468, 2002 WL 47051, at *3 (Ohio Ct. App. Jan. 15,
2002). Courts have generally found no confrontation rights in pretrial proceedings but have not
completely foreclosed that such rights could apply in some circumstances. See, e.g., United States v.
Karmue, 841 F.3d 24, 26–27 (1st Cir. 2016).
166 In addition to considering how video hearings interact with the Confrontation Clause, courts have
considered whether masked witnesses violate the Clause. See, e.g., United States v. Crittenden, No. 4:20-
CR-7 (CDL), 2020 WL 4917733, at *7 (M.D. Ga. Aug. 21, 2020) (“The Confrontation Clause does not
guarantee the right to see the witness’s lips move or nose sniff, any more than it requires the jurors to
subject the back of a witness’s neck to a magnifying glass to see if the hair raised during particularly
probative questioning.”).
167 Commonwealth v. Masa, No. 1981CR0307, 2020 WL 4743019, at *5 (Mass. Super. Ct. Aug. 10,
2020); United States v. Dozinger, No. 19-CR-561 (LAP), 2020 WL 5152162, at *3 (S.D.N.Y. Aug. 31,
2020).
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determined that the Confrontation Clause poses a high bar to video testimony
even in a global health crisis, going so far as to examine the comorbidities of
individual witnesses before determining whether it is reasonable to make
them travel to the court.168 In denying the government’s request for a witness
to provide video testimony, one court cited an earlier hearing which had
taken place by video where participants did not know who was speaking at
any given moment. 169 When the urgency of the pandemic fades,
confrontation rights will be an even greater bar to remote testimony, absent
consent.
Other Sixth Amendment guarantees have not yet been thoroughly
examined by courts in the context of the pandemic. For example, remote
court can implicate the right to a fair jury, most notably with respect to the
difficulty in ensuring jurors are free of improper influence during trials.170
Remote proceedings make it harder to monitor jurors and make measures
like sequester impossible, posing further hurdles to the due process dictate
that a trial judge is “ever watchful to prevent prejudicial occurrences and to
determine the effect of such occurrences when they happen.”171
Likewise, while the Sixth Amendment does not guarantee defendants a
petit jury that is perfectly representative of the community, it requires at least
a representative pool of jurors that presents a “fair possibility for obtaining a
representative cross-section of the community” on the petit jury.172 If a court
conducts voir dire remotely, as some jurisdictions have done, the digital
divide—which disproportionately leaves some communities without access
to high-speed internet—may distort the jury pool.173
Further, if remote systems impair attorney–client communications,174
courts risk systematically violating the guarantee of effective assistance of
counsel in criminal cases. While the most common claims of ineffective
assistance arise based on alleged poor decision-making by defense counsel,
the guarantee is also violated when a court creates circumstances that make
it impossible for even the deftest attorney to provide effective
168 United States v. Casher, No. CR 19-65-BLG-SPW, 2020 WL 3270541 (D. Mont. June 17, 2020);
United States v. Pangelinan, No. 19-10077-JWB, 2020 WL 5118550 (D. Kan. Aug. 31, 2020).
169 Pangelinan, 2020 WL 5118550, at *4.
170 See supra Section II.B.3.
171 Smith v. Phillips, 455 U.S. 209, 217 (1982).
172 Williams v. Florida, 399 U.S. 78, 100 (1970). To identify violations of the fair-cross-section
doctrine, courts look to whether the group excluded is distinctive, the group is underrepresented in the
pool of prospective jurors, and whether that underrepresentation is “inherent in the particular jury-
selection process.” Duren v. Missouri, 439 U.S. 357, 364–66 (1979).
173 See supra Section II.A.2.
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representation. 175 When such constructive denial of assistance of counsel

exists—because, for example, the trial court prohibited a defendant from
speaking with his lawyer during an extended recess—a defendant need not
even prove the circumstances prejudiced his case.176
If a court’s chosen remote system makes it difficult for attorneys and
clients to strategize or exchange information immediately prior to or in the
middle of a remote hearing, that court may violate defendants’ constitutional
rights by constructively denying them access to their attorneys. However,
early cases suggest courts will likely be skeptical of such arguments, at least
barring unusual circumstances. For example, in rejecting a criminal
defendant’s objections to conducting a suppression hearing remotely over
videoconference, including a claim that it would violate the right to effective
assistance of counsel, a federal district court judge noted, “[The court] has
conducted many hearings and even a bench trial via videoconference, and it
is confident in defense counsel’s ability to see, hear, assess, and cross
examine witnesses in an effective manner in that format.”177
Courts have been less cautious in proceeding with civil matters
remotely. In many instances, existing rules already provided courts with
greater flexibility to use remote technology. For example, Federal Rule of
Civil Procedure 43(a) provides that “[f]or good cause in compelling
circumstances and with appropriate safeguards, the court may permit
testimony in open court by contemporaneous transmission from a different
location.”178 Applying this rule, numerous courts found that the COVID-19
175 Strickland v. Washington, 466 U.S. 668, 686 (1984); Perry v. Leeke, 488 U.S. 272, 279–80
(1989).
176 Perry, 488 U.S. at 278–80 (holding that no showing of prejudice is necessary); Geders v. United
States, 425 U.S. 80, 92 (1976) (holding that no showing is necessary in an overnight-recess context).
177 United States v. Rosenschein, 474 F. Supp. 3d 1203, 1209 (D.N.M. 2020); see also United States
v. Willis, No. 1:19-cr-102, 2020 WL 3866853, at *3–5 (S.D. Ohio July 9, 2020) (concluding in the context
of a detention hearing that a temperamental video link that served as the only means for a detained
defendant to communicate with his attorney during the pandemic did not violate the Sixth Amendment
or otherwise justify the defendant’s temporary release (citing Benjamin v. Fraser, 264 F.3d 175, 187 (2d
Cir. 2001))).
178 FED. R. CIV. P. 43(a); see also Parkhurst v. Belt, 567 F.3d 995, 1002 (8th Cir. 2009) (“[A] district
court is afforded wide latitude in determining the manner in which evidence is to be presented.”).
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pandemic was a compelling circumstance to authorize remote bench trials,179

and even jury trials,180 via videoconference over parties’ objections.
But in civil cases as well, judges must ensure that remote proceedings
do not interfere with the right to a fair jury under the Seventh Amendment181
or constitutional guarantees of due process.182 In part, procedural due process
requires notice and a meaningful opportunity to be heard, and courts identify
constitutional infringements by balancing the importance of the interests at
stake in the proceeding, the risk that the procedures at issue will result in
erroneous harm to those interests, the value of additional safeguards, and the
government’s interests in the current procedures.183
Notice of a proceeding, for instance, must be more than a “mere
gesture” and should be “reasonably calculated, under all the circumstances,
to apprise interested parties . . . and afford them an opportunity to present
their objections.”184 But what if a summons provides little guidance on how
to use the court’s chosen platform, be it Zoom, GoToMeeting, or another
tool, or fails to give clear guidance on alternatives for litigants who lack
access to the necessary technology?185
With respect to what constitutes a sufficient hearing, due process
requirements can vary widely depending on the interests at stake and may be
a very low bar.186 Numerous courts have rejected due process objections to
remote civil trials during the pandemic, including ruling that remote cross-
179 Gould Elecs. Inc. v. Livingston Cnty. Rd. Comm’n, 470 F. Supp. 3d 735, 741 (E.D. Mich. 2020);
Argonaut Ins. Co. v. Manetta Enters., Inc., No. 19-CV-00482 (PKC) (RLM), 2020 WL 3104033, at *2–
3 (E.D.N.Y. June 11, 2020); Aoki v. Gilbert, No. 2:11-cv-0297-TLN-CKD, 2019 WL 1243719, at *2
(E.D. Cal. Mar. 18, 2019); see also In re RFC & ResCap Liquidating Tr. Action, 444 F. Supp. 3d 967,
971 (D. Minn. 2020) (allowing two witnesses to testify remotely when COVID-19 interrupted an ongoing
bench trial).
180 Liu v. State Farm Mut. Auto. Ins. Co., No. 2:18-1862-BJR, 2020 WL 8465987, at *3 (W.D. Wash.
Dec. 17, 2020).

181 Skaggs v. Otis Elevator Co., 164 F.3d 511, 514 (10th Cir. 1998) (citing U.S. CONST. amend. VII).
182 See, e.g., Lindsey v. Normet, 405 U.S. 56, 64–69 (1972) (applying procedural due process
protections to state eviction proceedings). For a review of potential procedural due process challenges to
summary eviction proceedings during the pandemic, see Procedural Due Process Challenges to Evictions
During the Covid-19 Pandemic, NAT’L HOUS. L. PROJECT (May 22, 2020), https://www.nhlp.org/wp-
content/uploads/procedural-due-process-covid-evictions.pdf [https://perma.cc/A9KW-P5DS].
183 Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976).
184
Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314–15 (1950).
185 See Tillman, supra note 128.
186 See, e.g., Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 18 (1978) (holding that when a
public utility seeks to discontinue service to a customer due to overdue payments, the utility must provide
merely “some administrative procedure for entertaining customer complaints”).
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examinations meet the requirements of due process.187 In Iowa, for example,

a court ruled that a termination-of-parental-rights hearing could take place
over the telephone.188
Yet, for at least a decade, courts have recognized that faulty technology
can trigger a due process violation in immigration proceedings if “the
outcome of [a] hearing ‘may have been affected’ by the fact that [the] hearing
was conducted by video conference.” 189 Particularly in the civil context,
where many litigants are pro se, a remote hearing may not provide a
meaningful opportunity to be heard for any number of reasons: poor access
to or discomfort with technology, insufficient accommodations on the
remote system for persons with disabilities, or a system for submitting
evidence that affords little opportunity for review by either opposing parties
or the court. As a New York court noted in an eviction matter, “[T]he
presumption that the modern practice of law should readily include a
computer and internet access does not hold for litigants, especially those of
limited financial means.”190 Thus, while due process objections are unlikely
to be a general bar to remote proceedings, they may have teeth for certain
categories of issues or litigants.
Finally, remote court raises challenging questions about what kind of
public access is required by the First and Sixth Amendments. 191 The
guarantee of public access is supposed to result in a two-way exchange of
information. On one side, the right exists to ensure the public can see what
is happening in their courtrooms.192 But the guarantee of a public trial also
benefits the accused: “‘[T]he presence of interested spectators may keep his
triers keenly alive to a sense of their responsibility and to the importance of
187 Lynch v. State, No. HHDCV166067438, 2020 WL 5984790, at *1 (Conn. Super. Ct. Sept. 11,
2020); see also Ciccone v. One W. 64th St., Inc., 132 N.Y.S.3d 261, 261 (Sup. Ct. 2020) (rejecting
objection to holding attorney-fee hearing via videoconference).
188 In re A.H., 950 N.W.2d 27, 39–40 (Iowa Ct. App. 2020); see also A.S. v. N.S., 128 N.Y.S.3d
435, 435 (Sup. Ct. 2020) (authorizing virtual child-custody trial over objections).
189 See Vilchez v. Holder, 682 F.3d 1195, 1200 (9th Cir. 2012) (quoting Pangilinan v. Holder,
568 F.3d 708, 709 (9th Cir. 2009)).

190 Wyona Apartments LLC v. Ramirez, 137 N.Y.S.3d 653, 657 (Civ. Ct. 2020).
191 See Waller v. Georgia, 467 U.S. 39, 40–41 (1984) (considering whether the Sixth Amendment
requires a public hearing on a motion to suppress evidence); Press-Enter. Co. v. Superior Ct., 464 U.S.
501, 503, 509 n.8 (1984) (determining how much publicity the First Amendment requires in voir dire
proceedings). Several federal courts have found a right to public access to civil proceedings, but the
Supreme Court has not spoken on this question. See Courthouse News Serv. v. Planet, 947 F.3d 581, 590
(9th Cir. 2020).
192 “The value of openness lies in the fact that people not actually attending trials can have confidence
that standards of fairness are being observed . . . . Openness thus enhances both the basic fairness of the
criminal trial and the appearance of fairness so essential to public confidence in the system.” Press-Enter.,
464 U.S. at 508.
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their functions . . . .’ [i]n addition to ensuring that judge and prosecutor carry
out their duties responsibly.”193 A one-way streaming link may serve the goal
of getting information out but fail to serve the interest in enabling family
members, neighbors, and the general public to keep courtroom participants
in check in the way the Constitution intends.
Nevertheless, courts may close court proceedings to the public so long
as doing so is narrowly tailored to forward an overriding interest.194 Courts
have recognized that public safety, juror and witness privacy, and national
security all may support court closure at times.195 Amid the 1918–1919 flu
pandemic, an Ohio appellate court ruled that a trial court properly exercised
its authority when, “acting for the general public welfare,” it excluded the
public from a trial at a time when “schools and churches were closed, the
right of public assemblage was prohibited[,] . . . and these were all necessary
police regulations designed to stamp out the further extension of the then
existing epidemic.”196
During the COVID-19 pandemic, several courts have determined that
partial courtroom closures undertaken to protect the “health and safety of
trial participants and the public” did not violate public-access rights because
the public was able to view the proceedings by streaming video in another
location.197 But at least one court determined that the Constitution requires
more than just public viewing and ordered that a corresponding video display
of the public and press watching in another room be installed in the
courtroom itself. 198 In its ruling, the court stated that this two-way video
feature serves a vital purpose: it reminds “those in the courtroom that the
193 Waller, 467 U.S. at 46 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979)).
194 Id. at 48.
195 See Presley v. Georgia, 558 U.S. 209, 213, 215 (2010) (per curiam) (holding that while there are
some circumstances which merit closure of voir dire to the public in order to inhibit improper
communications with jurors and ensure juror safety, the threat must be specifically articulated to
overcome the presumption that voir dire should otherwise be open to the public per the Sixth
Amendment); Sixth Amendment at Trial, 39 GEO. L.J. ANN. REV. CRIM. PROC. 653, 657 (2010)
(collecting cases); JOSEPH G. COOK, 3 CONSTITUTIONAL RIGHTS OF THE ACCUSED § 18:1 (3d ed. 2020)
(collecting cases).
196 Colletti v. State, 12 Ohio App. 104, 122 (1919).
197 United States v. Richards, No. 2:19-cr-353-RAH, 2020 WL 5219537, at *2–3 (M.D. Ala. Sept.
1, 2020); see also Strommen v. Mont. Seventh Jud. Dist. Ct., No. OP 20-0327, 2020 WL 3791665, at *1,
3 (Mont. July 7, 2020) (finding that the petitioner’s Sixth Amendment rights were not violated when the
court limited the number of persons who could attend his trial in person due to the COVID-19 pandemic
but allowed the public to view the remote proceedings live); Gomes v. U.S. Dep’t of Homeland Sec.,
Acting Sec’y, 460 F. Supp. 3d 129, 130–31 (D.N.H. 2020) (holding that the “goals of public access will
be achieved” through the use of video recordings of hearings that may be viewed live).
198 United States v. Babichenko, No. 18-cr-00258-BLW, 2020 WL 7502456, at *1 (D. Idaho Dec.
21, 2020).
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proceedings are indeed public and that members of the public are watching
the proceedings.”199
IV. INSTITUTIONAL BLIND SPOTS AND LESSONS FOR THE COURTS

Remote court has undoubtedly brought tangible benefits to many court
users as well as to judges and lawyers. Yet one striking element of the move
to remote court is that the benefits are often more visible than the costs,
particularly for judges, who are trained lawyers firmly on one side of the
digital divide. For example, Professor Turner’s survey of judges,
prosecutors, and defense attorneys in Texas found that 72% of defense
attorneys believed that online proceedings tended to lead to less favorable
outcomes for the defense, whereas only about 5% of prosecutors and judges
agreed.200
There is thus strong reason to bring a critical eye to the embrace of
remote court by many judges. Judges and other court leaders are frequently
in the position of setting court policy while also being participants in the
institution they are regulating. This gives them a valuable perspective, but it
also creates the risk of blind spots and warped incentives. For example,
courts, as well as individual judges, can face pressure to overemphasize
values such as speed, cost savings, and reduced workloads at the cost of fair
proceedings. 201 Indeed, courts’ pandemic response occurred under the
backdrop of an institutional culture where critics have suggested that “the
focus on efficiency has tended to overshadow other important values,
undercutting judicial oversight over, and commitment to, the realization of
other competing values, notably, the fair, equitable, and just conclusion of
disputes.”202
In addition to courts’ own incentives at times being at odds with the
pursuit of justice, court leaders may also overestimate their understanding of
the interests of other stakeholders. For example, by early summer, several
judicial branches and state bar associations had set up committees to make
199 Id.
200 Turner, supra note 24, at 62; see also id. at 57 (“With respect to all but one of the statements
about the disadvantages of video proceedings, there were statistically significant differences between the
responses of defense attorneys and the responses of judges and prosecutors.”).
201 Judith Resnik, Precluding Appeals, 70 CORNELL L. REV. 603, 615 (1985) (criticizing an
overemphasis on efficiency and arguing that “[e]conomy is not the sole purpose of a court system, nor is
it the hallmark of court systems as contrasted with other forms of decisionmaking,” that “[c]oin flipping
(or lotteries) would, after all, provide final and inexpensive solutions, but would also be an offensive
mechanism by which to make many decisions in this society”).
202 Orna Rabinovich-Einy & Yair Sagy, Courts as Organizations: The Drive for Efficiency and the
Regulation of Class Action Settlements, 4 STAN. J. COMPLEX LITIG. 1, 11 (2016).
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recommendations about reopening generally or, more specifically, about

their civil dockets or criminal trials. In August, the American Bar
Association (ABA) urged states that had not already done so to form
“committees to conduct evidence-based reviews of the use of virtual or
remote court proceedings . . . to ensure that they are guaranteeing all
applicable constitutional rights and ensure that attorneys can comply with
their professional ethical obligations.”203 The ABA further urged that “[s]uch
committees should include representatives of all constituencies involved in
or affected by the type of court or proceeding under consideration.”204
A review of these reopening committees, however, makes evident that
they did not include representatives from all affected constituencies. At least
sixteen state courts have convened committees to guide court policy on
addressing the COVID-19 crisis or the reopening process, of which fourteen
have publicly available membership lists. 205 Several other state bar
associations have also convened task forces. 206 Most committees have
consisted exclusively of judges, attorneys, and court staff; the few
nonattorney members have been either public-health experts or law
enforcement. 207 No nonattorney representatives of affected communities
have been included,208 and most attorney commissioners have been sitting or
retired judges or attorneys in private practice.209
Of the fourteen committees established by a judicial branch that we
reviewed, only two had a civil legal-aid representative.210 Three commissions
also lacked any public-defender representation. 211 This experience gap is
particularly significant because judges themselves rarely come from legal-
services or defender backgrounds, making representation of these
203 AM. BAR ASS’N, RESOLUTION 117 (Aug. 3–4, 2020), https://www.americanbar.org/
content/dam/aba/directories/policy/annual-2020/117-annual-2020.pdf [https://perma.cc/N6VM-TEV4].
204 Id.
205 Task forces were created by the courts in Delaware, Florida, Georgia, Illinois, Indiana, Iowa,
Kansas, Kentucky, Massachusetts, New Hampshire, North Carolina, Ohio, Vermont, Virginia,
Washington, and Wisconsin. Membership lists were not available for New Hampshire or Indiana. Alicia
Bannon & Douglas Keith, Analysis of COVID-19 Commission Membership (unpublished data) (on file
with journal).
206 State bar task forces were created in Alabama, Connecticut, Florida, Maryland, Missouri, New
Jersey, New York, Pennsylvania, Vermont, and Washington. Id.

207 Out of twenty-six committees, five included public-health representatives and five included
representatives from law enforcement (excluding prosecutors). Id.

208 Id.
209 Id.
210 Id.
211 Id.
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perspectives even more important during policy making.212 To be sure, many

courts likely have sought the counsel of other bodies in the course of their
deliberations, such as state access-to-justice commissions, which include
public defenders and civil legal-aid representatives.213 But it is nevertheless
troubling that the committees driving the development of court policy
included few of the perspectives of the people most likely to suffer if remote
proceedings result in unfairness.
Similarly, the National Center for State Courts, which works
collaboratively with court associations like the Conference of Chief Justices
and the Conference of State Court Administrators, created a panoply of
resources for courts during the pandemic, including producing thirty-four
webinars between March and November 2020. The webinars covered
everything from managing jury trials during COVID-19, to the use of remote
interpretation services, to administering criminal court dockets.214 Strikingly,
only four of these webinars included any representatives from civil legal-
services or public-defender offices.215 In half of them, the only participants
were judges, court administrators, or a combination of the two.216
Our interviews further suggested that even when stakeholder
consultation was valued at the top of the court hierarchy, it did not always
trickle down to the local level, where ordinary people are most likely to
interact with courts. In Missouri, for example, the state supreme court
directed local court leaders to consult with “members of the local bar,
prosecutors and public defenders, law enforcement and probation and
parole.”217 Yet when advocates in Kansas City wrote to court leadership to
express concerns that tenants would be unable to access the court’s remote
platform, 218 advocates reported that local leadership did not engage with
212
ALICIA BANNON & JANNA ADELSTEIN, STATE SUPREME COURT DIVERSITY UPDATE
(forthcoming 2021).
213 For example, the Massachusetts Access to Justice Commission created a COVID-19 Task Force,
with an Access to Courts Committee that provided recommendations to the courts. Mass. Access to Just.
Comm’n, Update, MASS. A2J (Apr. 9, 2020), https://massa2j.org/?p=1170 [https://perma.cc/XX62-
E5UW].
214 Webinars, NAT’L CTR. FOR STATE CTS., https://www.ncsc.org/newsroom/public-health-
emergency/webinars [https://perma.cc/E3N6-FMGU].
215 See id.
216 See id.
217
SUP. CT. OF MO., OPERATIONAL DIRECTIVES 3 (May 4, 2020), https://www.courts.mo.gov/
file.jsp?id=156093 [https://perma.cc/MN5A-XVT3].
218 See e.g., Letter from Gina Chiala, Exec. Dir., Heartland Ctr. for Jobs & Freedom et al., to Hon.
David M. Byrn & Hon. Janette K. Rodecap 2–4 (Apr. 23, 2020), https://fox4kc.com/
wp-content/uploads/sites/16/2020/04/20200423-Ltr-to-J-Bryn-and-Rodecap-re-Remote-Hearings-copy-
1911
legal aid or address their concerns.219 In Ohio, the managing director of a

legal-services organization described legal aid as having good
communication with the state supreme court but said that at the local level it
was “hit or miss and mostly miss.”220 That said, some courts have taken the
time to engage with their communities, including in Michigan, where a
leader of a legal-services group reported that legal aid developed a
constructive relationship with its district court during the pandemic. This
occurred after the Michigan Supreme Court issued a directive that each chief
district court judge should hold a meeting to evaluate remote proceedings
and include legal aid in that meeting.221
If courts did engage more with lawyers representing low-income
community members, they might find substantial agreement about the need
for remote proceedings and ideas for maximizing their utility and minimizing
their shortcomings. For example, the legal-services attorneys we interviewed
generally supported holding many preliminary hearings remotely and
focused their concerns on evidentiary hearings and trials. 222 Among the
recommendations we heard from attorneys were expanding access kiosks
and doing more to let tenants know about their existence, 223 more formal
efforts to connect pro se parties to legal services, 224 and prioritizing
technological solutions to overcome the problems involving documentary
evidence and attorney–client communication.225
V. PRINCIPLES FOR MOVING FORWARD

States’ experiences with remote court suggest several principles that
should inform future policymaking, both in responding to COVID-19 and
other emergencies and in developing long-term policies regarding remote
1.pdf [https://perma.cc/NS38-VQST] (expressing concerns regarding due process and other constitutional
issues with respect to remote court proceedings).
220 Telephone Interview with legal-services provider in Ohio, supra note 77; see also Telephone
Interview with legal-services provider in Florida, supra note 77 (noting there is a lack of collaboration
between the court system and the public with respect to legal aid).
221 Priority Treatment and New Procedure for Landlord/Tenant Cases, Admin. Order No. 2020-17,
(Mich. Jan. 30, 2021), https://courts.michigan.gov/Courts/MichiganSupremeCourt/rules/Documents/

HTML/AOs/AOsResponsive%20HTML5/AOs/Group1/Administrative_Orders/AO_No_2020-17_%E2
%80%94_Priority_Treatment_and_New_Procedure_for.htm [https://perma.cc/SQ33-Y6VZ].
223
Telephone Interview with legal-services provider in Florida, supra note 77; Nov. 13 Telephone
Interview with legal-services provider in Missouri, supra note 87.
225 Telephone Interview with legal-services provider in Florida, supra note 77; Telephone Interview
with legal-services provider in Michigan, supra note 77.
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court. This list of principles adapts and builds on our earlier work, 226
supplemented with the lessons laid out in this Essay.
A. Engage a Diverse Array of Justice-System Stakeholders

Courts must engage and listen to stakeholders both inside and outside
the judicial system in developing remote court policies, including integrating
diverse perspectives into committees and other policymaking bodies. As this
Essay discusses, remote court has transformed the experience of going to
court. But it can pose widely disparate challenges and benefits for different
kinds of litigants in different types of cases, which span from evictions to
multimillion-dollar commercial disputes, from traffic violations to felony
criminal cases. At the same time, judges and court administrators have their
own institutional incentives and blind spots that can obscure some of the
challenges posed by remote court policies.
For all these reasons, court leaders must engage broadly with affected
constituencies, including members of the communities most likely to suffer
if remote proceedings go poorly, such as communities of color, immigrant
communities, and communities of people with disabilities. As discussed in
Part IV, there are worrying indications that many states’ consultations to date
have largely been limited to the perspectives of court staff and lawyers and
that civil legal services in particular have not consistently had a seat at the
table. Courts should prioritize incorporating the insights of community
advocates, public defenders and prosecutors, civil legal-services providers,
tenant representatives, survivors of domestic violence, public-health experts,
disability-rights advocates, court employees, and more.
B. Tailor Plans to the Type of Proceeding

There is no one-size-fits-all approach to remote proceedings. Courts
hear a broad range of cases, both civil and criminal, for which remote
proceedings are likely to pose very different challenges, benefits, and trade-
offs. Among other things, cases vary in complexity and time sensitivity, the
stakes of a win or loss, the kind of fact-finding that is required, and whether
they involve detained individuals or self-represented litigants. Courts should
target their policies accordingly. For example, the Michigan Supreme Court
issued an order pertaining exclusively to procedures for landlord–tenant
cases during the pandemic, including the use of remote proceedings.227
Similarly, courts should consider how trade-offs may vary depending
on the nature of the proceeding. For example, holding a status conference by
226 See KEITH & BANNON, supra note 7.

227 Priority Treatment and New Procedure for Landlord/Tenant Cases, supra note 221.
1913
video or phone, or a hearing where purely legal questions are at issue, raises
different considerations than using the same technology for an evidentiary
hearing. Existing research suggests reason for caution in using
videoconferencing in instances where a fact finder must make credibility
assessments. 228 The Florida Supreme Court’s COVID-19 workgroup, for
example, determined that the state’s mandate for remote hearings should
only apply to status and pretrial conferences, nonevidentiary hearings, and
other categories of proceedings the workgroup deemed “amenable” to being
conducted remotely.229
Going forward, the contours of future policies should also be informed
by experience. In Texas, for example, surveyed judges, prosecutors, and
defense attorneys “identified initial appearances, bond hearings, status
hearings, and certain other uncontested pretrial hearings as suitable for
videoconference” in the future.230 In the eviction context, experience shows
that the digital divide is a salient issue, underscoring the need for procedures
to ensure access for individuals who lack the required technology. 231 By
crafting policies that respond to the nature of the proceeding at issue, courts
may be able to advance a large portion of their docket remotely while being
cautious around the types of hearings stakeholders know are most impacted
by the use of remote technology.
C. Bolster the Attorney–Client Relationship

Remote proceedings also pose challenges to the attorney–client
relationship. Most fundamentally, remote court reduces the opportunity for
communication between attorneys and clients prior to, during, and after court
proceedings. This can manifest in small ways. For example, an attorney may
be unable to whisper a reminder to a client to maintain courtroom decorum.
It can also manifest in large ways. For instance, a client might be precluded
from asking a question or sharing information in a way that prejudices her
case.
Courts have varied widely in the kinds of technological solutions they
have developed to bolster attorney–client communication, from Zoom
breakout rooms to instructions that attorneys send text messages to their
clients. Reports by practitioners suggest communication has posed numerous

229
Administrative Order at 8–9, In re Comprehensive COVID-19 Emergency Measures for the Fla.
State Cts., No. AOSC20-23 (May 21, 2020), https://www.floridasupremecourt.org/content/download/
633282/file/AOSC20-23.pdf [https://perma.cc/8X79-KWPC].
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practical and logistical problems, even when the court has provided a formal
communication mechanism.232
Courts should prioritize adopting technology that allows for
confidential attorney–client communication during court proceedings. Just
as important, they should create procedures to facilitate such communication
so that it is easy to pause proceedings for a client consult.
Even with these safeguards, courts should also recognize that clients
separated from their attorneys are at a disadvantage. A failed experiment
with remote juvenile detention hearings in Florida from 1999–2001 is a
cautionary tale. In repealing the interim rule authorizing these remote
proceedings, the Florida Supreme Court observed that “[a]t the conclusion
of far too many hearings, the child had no comprehension as to what had
occurred and was forced to ask the public defender whether he or she was
being released or detained.”233 Judges may need to take extra steps during
remote proceedings to ensure that the parties appreciate the significance of
the proceedings they are involved in and that they are made aware of their
options for relief. This is particularly important when cases involve
individuals who are likely to be unfamiliar with the legal system. And in
some kinds of proceedings, the risk of prejudice from being remote may
simply be too high.
D. Provide Extra Support for Self-Represented Litigants

Remote court offers both challenges and opportunities for serving self-
represented litigants. The physical courthouse often plays a central role in
connecting self-represented litigants with resources, including
representation. Courts across the country have narrowed the justice gap
through innovations like legal help desks, which give advice to
unrepresented parties, and programs that station pro bono counsel in
courthouses to provide on-the-spot limited representation.
Remote court interrupts these connections and makes it harder to
connect unrepresented individuals with resources. 234 At the same time,
expanded remote proceedings also have the potential to extend
representation to underserved and hard-to-reach communities by extending
the capacity of legal-services providers.235

233 Amend. to Fla. Rule of Juvenile Proc. 8.100(A), 796 So. 2d 470, 473 (Fla. 2001).
234 See supra Section II.C.
1915
Courts must take extra steps to ensure that self-represented litigants can
navigate the system during remote court, whether by providing additional
supports, appointing counsel, publicizing resources, or prioritizing
opportunities for in-person services.236 And it is crucial that courts provide
clear notice in advance of remote court. For example, guidance from the
National Consumer Law Center urges courts to provide clear information, in
multiple languages, about a consumer’s options to participate remotely or
appear in person in debt-collection hearings, including detailed instructions
about how the hearing will proceed, and to have a process to reach out to
consumers who fail to appear and make it easy for them to vacate defaults
and reschedule. 237 Courts should also consider special rules for self-
represented litigants, particularly during the pandemic.238
E. Provide Technical Support and Adopt Technology Standards to

Ensure Quality
Seemingly mundane technological glitches can have a substantial
impact on litigants’ rights and the fairness of court proceedings. Courts
should develop policies to protect litigants when they cannot be heard, or
cannot hear, at a critical juncture in their case, ensuring that they are not
penalized for technological difficulties. Courts also need technical support
on call for court staff and for members of the public, some of whom may be
using the court’s chosen remote platform for the first time.
And as our interviews highlighted, courts need clear policies for how to
submit evidence remotely, recognizing that litigants may face hurdles
submitting or reviewing documents or other materials on a screen. For
example, the Joint Technology Committee of the Conference of State Court
Administrators, National Association for Court Management, and National
236 Reaching SRLs During COVID: Outreach Campaigns Leverage Social Media, Ad Spots, and
Traditional Print to Ensure SRLs Know Self-Help Support Is Still Available (News 2021), SELF-
REPRESENTED LITIG. NETWORK (Apr. 2, 2021), https://www.srln.org/node/1433 [https://perma.cc/FR27-
TRTK] (providing some examples of outreach).
237 NAT’L CONSUMER L. CTR., REMOTE COURT APPEARANCES IN THE COVID-19 ERA: PROTECTING
CONSUMERS IN COLLECTION LAWSUITS (2020), https://www.nclc.org/images/pdf/special_projects/

covid-19/IB_Remote_Court_Appearances.pdf [https://perma.cc/P57V-6364].
238 For example, an April 2020 letter from a coalition of New York-based legal-services
organizations called on the Office of Court Administration to exclude cases involving pro se litigants
from virtual appearances for nonessential matters, unless the parties specifically requested otherwise. For
time-sensitive matters, the letter recommended that pro se litigants be given the option to participate by
telephone conference call rather than video. Email from New Yorkers for Responsible Lending to The
Hon. Lawrence K. Marks, Chief Admin. Judge, N.Y. State Unified Ct. Sys. (Apr. 15, 2020) [hereinafter
Email from New Yorkers for Responsible Lending], http://www.nyrl.org/wp-content/uploads/2019/01/
2020.4.15-NYRL-Ltr-re-virtual-appearances.pdf [https://perma.cc/75CT-FZ7D].
1916
115:1875 (2021) Remote Court
Center for State Courts has developed recommendations for courts’ use of
evidence during remote hearings, including special support for self-
represented litigants.239
Beyond disruption, the technological aspects of remote proceedings—
how defendants, witnesses, and parties appear on screen, including their
backdrop, lighting, and sound—may affect credibility determinations and
other fact-finding. As Professor Anne Bowen Poulin has noted in the context
of criminal proceedings, “[E]very technological choice will influence the
way the defendant is perceived, often in ways that cannot be precisely
predicted or reliably controlled.”240 Professor Poulin highlights, among other
things, screen size, the use of close-up shots, and camera angle as all
potentially affecting the ability to assess credibility as well as other relevant
information such as a defendant’s age and size. 241 Courts should develop
evidence-based metrics to standardize the use of technology, while also
recognizing that technological hurdles may make remote court inappropriate
for certain kinds of proceedings or litigants.
F. Appreciate the Persistent Digital Divide and Ensure Meaningful

Participation by Marginalized Populations
In adopting remote policies, courts must also address the persistence of
a digital divide with respect to technology access.
Court policies should reflect the fact that substantial portions of the
populations courts serve, and in particular historically marginalized
communities, may not easily transition to remote proceedings or may have
more difficulty using resource-intensive technologies like video.242
Our interviews suggest that in many instances, legal aid has stepped in
to help bridge the digital divide by creating internet hot spots for clients or
making conference rooms available to use during remote court. To the extent
legal-services providers are filling the justice gap, they should be fully
funded to do so. But legal services should not be a substitute for courts
establishing other safe access points within the community for people
without quality technology at home.
239 JOINT TECH. COMM., MANAGING EVIDENCE FOR VIRTUAL HEARINGS 1 (2020),
https://www.ncsc.org/__data/assets/pdf_file/0019/42814/2020-07-27-Managing-Evidence-for-Virtual-
Hearings-002.pdf [https://perma.cc/MC69-CSSK].
240 Poulin, supra note 112, at 1120.
241 Id. at 1120–22, 1120 n.120, 1121 n.123.
242 Email from New Yorkers for Responsible Lending, supra note 238.
1917
G. Seek the Consent of Parties Before Proceeding Remotely

Remote proceedings involve sometimes-complex costs and benefits,
and the parties and attorneys involved in a case will often be best situated to
understand these tradeoffs, which are rooted both in the nature of the
proceedings as well as individual-level factors. For example, individuals
with substantial childcare commitments may prefer proceeding with remote
court rather than traveling to a courthouse. Others may have privacy
concerns about appearing via video, recognizing that their images could be
easily recorded. Attorneys may recognize that certain aspects of a case are
too crucial or sensitive to conduct remotely.
As a general matter, courts should address these competing pressures
by giving participants a choice and prohibiting judges from moving a case
forward remotely without consent from all parties, as some court systems
have already done for certain cases. New Jersey, for example, requires
consent for criminal sentencing hearings as well as hearings related to
juvenile delinquency, termination of parental rights, and other proceedings
for which the court system has determined greater care is necessary.243 Any
consent requirement must be meaningful, however, with an option for timely
in-person proceedings not so far in the future as to harm the interests of the
parties.
At the same time, our interviews also highlighted numerous examples
of local courts and individual judges who have insisted on in-person
proceedings, even in the face of guidance encouraging the use of remote
court. Just as individuals should have a choice in whether to proceed
remotely, they should not be forced to appear in person in nonessential cases
when public-health guidance suggests such proceedings could be unsafe. As
the ABA has noted, “[B]ecause virtual or remote court proceedings have the
potential to ease and expand access to the courts, and indeed may be the only
access available during this pandemic, optional use of these procedures,
governed by consent, should be as widely available as possible.”244
H. Study Remote Proceedings to Better Understand Their Impact

Courts expanded the use of remote court with unprecedented speed and
scope, and there is much that we simply do not know about its impact on
243 Notice from Glenn A. Grant, Acting Admin. Dir. of the N.J. Cts., to the N.J. Bar, COVID-19 –
Updated Guidance on Remote Proceedings in the Trial Courts; Options for Observing Court Events and
Obtaining Video and Audio Recordings; Court Authority to Suspend the Commencement of Certain
Custodial Terms (Apr. 20, 2020), https://njcourts.gov/notices/2020/n200420a.pdf?c=nHy
[https://perma.cc/FRR4-P33H].
244 AM. BAR ASS’N, supra note 75, at 11.
1918
115:1875 (2021) Remote Court
fairness and access to justice, as well as on the “user experience” of litigants,

lawyers, and other stakeholders. Pre-pandemic research has generally
focused on specific contexts, such as immigration court 245 or bond
hearings,246 leaving many unanswered questions about the implications of
remote court for different litigants or proceedings.
If court systems are going to continue to rely on expanded remote
proceedings, they need data on what works, with particular attention paid to
the impact on marginalized communities. The pandemic experiment with
remote court is an opportunity for data collection, surveys, and empirical
research on impact and is a call to action for court systems and scholars alike.
I. Embrace the Benefits of Remote Proceedings

Even recognizing their shortcomings and with the caveat that there is
much that we still do not know about their impact, it is clear that remote
proceedings can bring substantial benefits in some circumstances. Foremost,
they have allowed courts to continue operating during the COVID-19
pandemic, reducing risks to court staff and court users alike, while providing
essential services.
But in more normal times as well, courts can use remote tools to
strengthen the justice system. Remote court can make it easier for litigants
to access the courthouse, enable legal providers to reach difficult-to-serve
communities, allow attorneys to spend more time serving clients and less
time in transit to the courthouse, and provide services to self-represented
litigants, among other benefits.247
While courts must recognize the documented shortcomings of remote
proceedings, they should also embrace using remote proceedings when the
benefits are clear. Many courts have invested substantially to develop remote
court infrastructure. These investments should be built upon, and courts and
legislatures should take this opportunity to further invest in expanding
remote services and resource hubs that promote access to justice.
245 E.g., Eagly, supra note 23, at 934.

246 E.g., Diamond et al., supra note 23, at 897 (noting that after proceedings via closed-circuit
television were introduced for most bail hearings in Cook County, the average bond amount for impacted
cases rose by 51% and increased by as much as 90% for some offenses, and noting that for those cases
that continued to have live bail hearings, there were no statistically significant changes in bond amounts).
247 SELF-REPRESENTED LITIG. NETWORK, SERVING SELF-REPRESENTED LITIGANTS REMOTELY: A
RESOURCE GUIDE 11–13 (2016), https://www.srln.org/system/files/attachments/Remote%20Guide%20

Final%208-16-16_0.pdf [https://perma.cc/LM7N-BGD6].
1919
CONCLUSION
Courts are often slow to innovate. The COVID-19 pandemic has forced
unprecedented agility and creativity, including the embrace of remote court
in many contexts. Courts should not go backwards. But just as courts should
resist the temptation to return to a broken status quo, they should also avoid
embracing change without fully reckoning with the costs. This Essay is part
of an initial effort to detail some of the factors that should guide this longer-
term policymaking.
1920

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Remote Court - Principles For Virtual Proceedings During The COVID

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Copyright 2021 by Alicia L. Bannon & Douglas Keith Printed in U.S.A.

Vol. 115, No. 6

Alicia L. Bannon & Douglas Keith

ABSTRACT—Across the country, courts at every level have relied on remote

AUTHORS—Alicia L. Bannon is the managing director of the Democracy

INTRODUCTION .......................................................................................................... 1876

11, 2020), https://www.youtube.com/watch?v=FEwnM615Xh8 (last visited Mar. 7, 2021).

PROCEEDINGS ON FAIRNESS AND ACCESS TO JUSTICE IN COURT (2020), https://www.brennancenter.

In Part I, we describe how courts have expanded the use of remote

recent study found that lifting eviction moratoria contributed to increased

ncov/downloads/declaration-form.pdf [https://perma.cc/A4DR-9ZZT]. But some states have not

issue. All of these considerations underscore the importance of broad

I. COURTS’ ADOPTION OF REMOTE PROCEEDINGS IN RESPONSE TO THE

Policies, BRENNAN CTR. FOR JUST. (Apr. 14, 2020), https://www.brennancenter.org/our-work/analysis-

AOSC20-13 (Fla. Mar. 13, 2020), https://www.floridasupremecourt.org/content/download/631744/file/

(Tex. Mar. 13, 2020), https://www.txcourts.gov/media/1446056/209042.pdf [https://perma.cc/C475-

JUD. BRANCH (May 7, 2020), https://jud.ct.gov/HomePDFs/RemotelyHandledCases.pdf

federal district courts ordered reduced operations in response to worsening

REMOTE TECHNOLOGY 12–15 (2016), http://napco4courtleaders.org/wp-

(manuscript at 6), https://papers.ssrn.com/a=3699045 [https://perma.cc/TP3Z-FWRC].

But the COVID-19 pandemic prompted courts to turn to remote

courts to conduct remote hearings in a variety of criminal proceedings).

9080 (Tex. June 29, 2020), https://www.txcourts.gov/media/1448109/209080.pdf [https://perma.cc/

misdemeanor court in November 2020, 38 which are livestreamed from its

DALL. MORNING NEWS (Nov. 24, 2020), https://www.dallasnews.com/news/2020/11/24/mckinney-is-

Cts., No. AOSC20-23 (Fla. Feb. 17, 2021), https://www.floridasupremecourt.org/content/

Inevitable, LAW.COM (Sept. 13, 2020), https://www.law.com/2020/09/13/law-com-trendspotter-virtual-

M.R. 30370 (Ill. Oct. 27, 2020), https://courts.illinois.gov/SupremeCourt/Announce/2020/102720-1.pdf

approximately 122,000 remote hearings between March 24 and June 1,

II. THE PANDEMIC EXPERIENCE SHOWS REMOTE COURT’S

Maureen O’Connor’s Term, COLUMBUS DISPATCH (Dec. 29, 2020), https://www.dispatch.com/

https://wearecommons.us/2020/07/30/the-wheels-of-justice [https://perma.cc/2ZPF-TWPM]; see also

A. Convenience for Many, Exclusion for Some

59 Reed & Alder, Virtual Hearings, supra note 36.

In some instances, time savings have also meant expanded access to

67 Telephone Interview with legal-services provider in Florida, supra note 63.

https://www.ncsc.org/newsroom/at-the-center/2020/may-13 [https://perma.cc/3TVM-VJVT] (noting that

outside of juvenile proceedings, virtual hearings had no impact on appearance rates).

31, 2019), https://www.pewresearch.org/fact-tank/2019/05/31/digital-gap-between-rural-and-nonrural-

RSCH. CTR. (April 7, 2017), https://www.pewresearch.org/fact-tank/2017/04/07/disabled-americans-are-

access technology. 78 Among other challenges, tenants who are facing

78 Telephone Interview with legal-services provider in Florida, supra note 63.

Aug. 25, 2020).

20SP582 (Mass. Hous. Ct. Jan. 14, 2021).

EMILY NIEDZWIECKI, RESEARCH ON VIDEOCONFERENCING AT POST-ARRAIGNMENT RELEASE HEARINGS

participate. 94 However, even when courts have taken affirmative steps to

B. A Day in Court Without a Courtroom

94 Telephone Interview with legal-services provider in Texas, supra note 86.

missing exhibits after implementing new email requirements).

REDUCE CASE BACKLOG AND ADDRESS LONG-STANDING MANAGEMENT AND OPERATIONAL

In some jurisdictions, concerns about assessing witness credibility have

Conn. June 26, 2020) (No. 190).

C. Special Challenges for Self-Represented Litigants

120 Thornburg, supra note 69, at 25.

(2019), https://www.courts.ca.gov/documents/benchguide_self_rep_litigants.pdf [https://perma.cc/

126 Id. at 1-2–1-3.

difficulties of making people aware of legal services remotely).

when their proceedings occurred over videoconference as compared to in

D. Differing Forms of Public Access

PRES (Jan. 14, 2021), https://carolinapublicpress.org/41424/eviction-in-north-carolina-as-pandemic-

147 Thornburg, supra note 69, at 26–27.

with court watcher in Texas, supra note 64.

III. CONSTITUTIONAL ISSUES RAISED BY REMOTE COURT